The indictment in the present case is an exact copy of form 59, Code of 1876, p. 998, and is sufficient. Code of 1876, sections 4205, 4824.
The statutes require the grand jurors to take an oath that they will keep secret the State’s counsel, their fellows and their own. — Code of 1876, section 4755; see, also, sections 4134-5. Indictments, when found, are presented to the court in open session, by the grand jury as a body. This is a solemn, official affirmation to the court that the bills then presented, indorsed by the foreman true bills, and signed by him, are the findings of at least twelve of the grand jury. The grand jurors being present, if any bill, so presented, was unauthorized by the requisite finding, the fact should then be made known. The indictment being returned and delivered to the court, is then indorsed by the clerk and filed in his offico, and becomes a record of the court. — Code of 1876, sections 4677, 4821. Indictments having these solemn sanctions thrown around them, it is not permissible to receive testimony, either of the grand jurors, or of any other person cognizant of the facts, to show how any grand juror, or any number of them, voted on any particular finding. The recorcl 'can not be disproved in this way. — 1 Greenl. Ev. § 252.
Section 4733 of the Code of 1876, directs that in drawing and selecting grand and petit jurors, “ no person must be selected who is under twenty-one years of age, or over sixty years of age,” &c. One of the grand jurors at the time at which this indictment was found, was over sixty years of age; but he waived his exemption, and consented to serve. This was no ground for quashing or abating the indictment. Code of 1876, section 4889; Clark’s Manual, § 2329.
*387Under our statutes, in all prosecutions, whether for crimes or misdemeanors, peremptory challenges of jurors are allowed to the State and to the accused; the number allowed to the accusod being greater than that allowed to the State. — Code of 1876, sections 4879, 4880, 4877. The statute no where declares which party shall be required to first exercise this privilege. In the Circuit Court, certain jurors were summoned from another jury to supply the deficiency caused by prior challenges; and as to these jurors, so summoned, the defendant was ruled, against his objection .and exception, to first announce his acceptance or rejection of such jurors, before the prosecuting attorney should be required to announce whether or not he challenged any of them peremptorily. The defendant thereupon declined to announce whether or not he would challenge such jurors until the State had first spoken. The solicitor then accepted said jurors, whereupon the defendant offered to challenge them peremptorily, which the court refused to allow. The defendant had not exhausted his peremptory challenges. The charge in this case is a misdemeanor; and in trials for such offense, our statutes do not require the regular jurors who have been sworn for the week, to be specially sworn in each particular cause. The general oath, at the commencement of the week, is sufficient in all cases, civil and criminal, except capital felonies. — Code of 1876, § 4765. We have uniformly held that the right to challenge a juror is not waived oy lost until the juror is accepted, or is sworn for the trial of the issue. In this, we but carry out the doctrine almost universally asserted. The reason that swearing the juror is held to determine the election is, that the administration of the oath is the commencement of the trial — the submission of the issue to the jury. The jury being thus charged with the trial of the issue, no juror should be afterwards withdrawn from the panel, except for one of the few grounds sanctioned by the law. The discovery, after the juror is sworn, of a ground of challenge for cause, not previously known, is one of the exceptions to the rule. But when, as in this case, the jurors are not specially sworn to try the particular issue, the trial can not be considered as entered upon, nor the cause submitted to the jury, until the parties have elected them, or some step has been taken in putting the case before them. A challenge, at any time before that, by one whose challenges are not exhausted, should be allowed by the court, as matter of right. — Clark’s Manual, § 2376. Under this rule, the Circuit Court erred in denying to the accused the right to challenge the two jurors. — 1 Bishop Cr. Prac. § 945; Whar. Amer. Cr. Law, § 3026.
*388Here we might close this opinion, hut we prefer to express our views on the order in which the right of peremptory challenge should be exercised. As a general rule the plaintiff, or actor, is required to take the initiative — to speak first — in judicial proceedings. He inaugurates the suit, and calls the defendant to account. He first announces whether he is ready for trial; and, proceeding in the trial, he first introduces his testimony. We do not find it positively declared which party shall first make known his challenges. In England, for many long centuries, the Crown or government has had no right of peremptory challenge. In many of the States composing the American Union, the State may challenge a limited number of jurors, without assigning any reason, or showing any cause therefor. Such is the law of Alabama. The number is different in the different States, and usually increases with the magnitude of the offense charged. In Hayes' case, 23 Mo. 287, the Circuit Court had refused to compel the prosecuting officer to announce his acceptance or rejection of jurors, until after the prisoner had first made his election known. The court, after stating that “ the simplest rule upon this subject, and one to which there would seem to be no objection, is that of requiring the parties to challenge as the jurors are called and pronounced qualified, the plaintiff always speaking first,” came to the conclusion, by a line of argument that does not satisfy us, that the prisoner had not been injured by the ruling of the court. In Stewart v. The State, 13 Ark. 720, speaking of the right to challenge jurors, the court said: “ We think the correct mode of proceeding * * is, that when a juror is presented, it is the duty of the court to inquire, first of the attorney for the State, and then of defendant, ‘ do you accept this juror, or do you challenge him ?’ ” See, on this subject, 1 Bish. Cr. Prac. § 945, and note; Whar. Amer. Cr. Law, § 2956, et seq; Bac. Abr. Title Juries, E. 10; Hooker v. The State, 4 Ohio, 348; 4 Blackst. Com. 353; Wilson v. The State, 31 Ala. 371; Murphy v. The State, 37 Ala. 142; Lyman v. The State, 45 Ala. 72; Murray & Bell v. The State, 48 Ala, 675. In the case of Lyman v. The State, supra, this court said: “ Most clearly the right of challenge may bo waived ; and when it is waived by the State, and the juror is put upon the acceptance of the accused, and he is accepted by him as one of his triers, the process of his election is complete.” This language clearly implies that on the State is cast the duty of first announcing peremptory challenges ; and such, we think, has been the practice of the courts through our whole judicial history. We hold that the Cir*389cuit Court erred iu requiring the defendant to first express his election or rejection of the jurors for his trial.
Reversed and remanded; the defendant to remain in custody until discharged by due course of law.