Many points of law decided by the Court below, which have been referred this Court, because (hey were deemed by the judge who presided, novel and difficult; and this Court has now to determine whether the sentence which has been nounced, shall be executed upon the defendant, or the judgment reversed.
In giving an opinion in the case, I shall pursue the order laid down in the defendant’s brief, and consider, 1st. alleged defects in the record, anterior to the trial; 2d. the refusal to award the writ of certiorari, and to permit the defendant to withdraw the plea of “not guilty,” and plead in abatement or demur; 3d. the proceedings at the trial, in relation to the challenge of jurors; 4th. the discharge of one of the jurors, without the consent of defendant, after he had been accepted by him and sworn.
Under the first objection, three defects are alleged, 1st. that it does not appear that a venire facias was legally issued and returned; 2d. that the record contains no caption to the indictment; 3d. it does not appear how the indictment upon which the defendant was tried, came into the office of the Circuit Court of Autauga county. It is insisted that the record should show that the names of the jurors for the term of the Court at which the indictment was found, were drawn according to the statute, that a ve-nire was.regularly issued, executed and returned.
In the case of Collier v. The State,a it was determined that after verdict, the Court would presume that the names of the jurors specified in the venire facias, had been drawn according to law, particularly when the writ itself expressed that they were ‘‘good and lawful jurors of your county, duly appointed as the statutes require,” and that no objection could be made on such ground in this Court. But it is probable that a plea in abatement would not be, received on this ground. The statute regulating the mode of drawing the names of the jurors, which are to be included in the venire facias, is entirely directory, and intended, not for the benefit of those who may be accused of breaehesof the public law, or of suitors in Court, but to secure the equal distribution of this burden, among all the citizens of the seyeral counties, who possess the necessary qualifications. It is therefore no injury to the defendant nor a matter of which he can complain if the jurors’ names are not drawn according to the requisitions of the statute. Nor is it more important that the return of *462venire facias should be technically stated in the re» cord. If it appear that the writ has issued, and that the grand jury was composed of persons whose names are in t^e writ, it will be presumed that they are the same, and it must be totally immaterial whether they were summoned or not. In this case, how'ever it does not appear that a venire facias ever issued. The paper Much was produced by the counsel for the state at the term in which the trial took place, and which purported to be a copy of the venire facias certified by the clerk of the Circuit Court of Montgomery county, certainly cannot be received as a part of the record. After the clerk of the Court, from which a cause is taken-by change of venue, has complied with the order by making out a transcript of the orders and transmitting the papers to the Court to which it is ordered, he cannot supply omissions by supplemental copies of parts of the proceedings, however important such part may be. His authority to act at all is the order of the Court, and if he has failed to make out a full exemplification in the first instance, he cannot cure the defect of his own volition, as any other act would not be valid unless a subsequent order authorized it. It is necessary then to determine whether a copy of the venire facias is essential to the record in Autauga County. It is certainly necessary that the record of the conviction should contain enough to show that such conviction was legal. But after the general issue has been pleaded, 1 do not understand that any objection can be made which reaches the venire facias. I can find no authority, nor has any been cited by the gentleman who so ably argued this case in behalf of the defendant which authorizes this Court to look back to the venire facias for defects on which to reverse the judgment. On the contrary, in the case of the Commonwealth v. Smith,b Judge Sewall says, 11 objections to the personal qualifications of the jurors, or to the legality of the returns, are to be made before the indictment is found 5 and may be received from any person, who is under a presentment for any crime whatever; or from any person present, who may make- the suggestion as amicus curia..,J With us indictments are rarely preceded by presentments, and such objections probably might be made by plea in abatement.
As respects the want of a caption, it is certain that if in the Court in which the indictment was found, the record showed none of the facts which are usually contained in the *463caption, this would be good cause to quash; or even to rest the judgment. The caption generally specifies electing and swearing of the grand jury; gives the names of the jurors, and the fact of the return of the indictment into Court. I would not be understood to say that the indictment would be quashed unless all these facts were contained in the caption, but surely some of them are essential. If it did not appear that there were as many as twelve grand jurors, this would be fatal at any time. In England where indictments are carried from inferior Courts into the Court of King’s Bench by certiorari,, great strictness is required in setting out every thing necessary to show that the inferior Court had jurisdiction of the case; and even where the indictments have been found in that Court there are many cases in which they have been quashed for defects in the caption. The caption however may be amended, and made to conform to the fabts of the case.c The Court in which the indictment was found in this case, is one, not of limited, but of plenary jurisdiction. Every presumption, therefore, is to be made in favor of the correctness of its proceedings. By pleading to the indictment many things which would be fatal, if objected to before, would be waived; among these is the service of a copy of the indictment two entire days before the arraignment; if our statute should be construed to require this; which I am inclined to think would be an incorrect construction. In this case it was the act of the defendant by which the venue was changed to Autauga County; the constitution secured.to him the right of atrial in the county in which the offence was charged’to have been committed. As the Circiut Court of Montgomery County is a Court of general jurisdiction, the Court into which the case was removed was bound to infer that all things had been regularly done before the charge of venue was ordered; it was therefore bound to presume that the caption and other proceedings were regular in the Court in which the case originated. It devolved then upon the defendant to show a fatal irregularity. How this was to be done, it is not necessary to determine; but I will suggest that, it might have been done by producing in the Circuit Court of Autauga a certified copy from the record of the case in Montgomery by which the error would be shown, and praying a certiorari to obtain an exemplification of that part of the record. And although it is true as a general rule, that this.writ can only be awarded from *464superior to an inferior jurisdiction; yet the necessity of the case, would probably authorize it in this.
As to the manner in which the indictment was conveyed into the office of the Circuil Court of Autauga, it must presumed to have been in conformity with the order which transferred the case from the one Court to the other. That order required, that the Clerk of the Circuit Court for Montgomery County should “ safely transmit to the Clerk of the Circuit Court of Autauga County, the indictment and all original papers in the case, together with a certified copy of all orders and other proceedings which have been had in the case.” This certified copy of the proceedings is, at the next term of the Circuit Court of Autauga found in the possession, and among the official papers of the Clerk of that Court, and the indictment is filed with them; the case is twice continued by the defendant afterwards; he certainly cannot at so late a period and under these circumstances be heard to say that the indictment does not appear to have come regularly into that Court.
The next point made by the defendant; viz: “ the refusal to award the writ of ciiiorari, and to permit the defendant to withdraw the plea of “not guilty” and plead in abatement or demur,” is disposed of by what has been already said. By the authority before cited from 9th Massachusetts reports, it appears that the object of this motion could not have been effected even had he been permitted to withdraw the plea of ‘‘not guilty” and had the writ of c&rtiorari been awarded. His wish was to plead that one of the grand jurors who found the indictment “ was not qualified as the law requires, in this, that lie was neither a freeholder or householder in Montgomery County.” It is required by our statutes that grand jurors shall possess this qualification. But it by no means follows that indictments are vitiated because one or more of them do not possess it. The case in Massachusetts Reports before referred to, informs us that an objection of this kind comes too late, after the indictment is filed; it certainly comes too late after the plea of “not guilty,” has been entered. It is true the Court might have permitted the plea to be withdrawn, but it was altogether a matter of discretion; and a discretion, the exercise of which should not have been expected, after the lapse of so long a lime from the commencement of the prosecution, and after such repeated continuances at the instance of the accused..
*465The third point to be considered, is “the proceeding the trial, in relation to the challenge of jurors.” It appears that when the prisoner was put upon his trial, Dixon Hall was called as a juror, who being sworn on his voir dire, said that he had formed and expressed an opinion to the guilt or innocence of the prisoner; the prisoner then challenged him for cause; but the Court overruled the challenge and directed the juror to be asked, “ is that, opinion formed from common reporl, or information received from the witnesses.” The juror answered, “ It was formed from common report.” The Court then directed the further question to be asked, “ if the evidence on the trial were to turn out different from what it was reported to be, would that opinion have any influence on your verdict,” to which the answer was, “ it would not.” The juror likewise answered to questions put to him by the prisoner’s counsel, that “ when he heard the report he believed it to be true, that he still believed it; that he had said if the report was true the prisoner ought to be hung; and that he still thought so, if the report was true.” The juror was again challenged for cause, which challenge the Court overruled. The same questions were propounded to several other jurors, and similar answers given; the challenge of all of whom for cause was overruled, and in two instances after, the prisoner’s peremptory challenges were exhausted. The counsel for the defendant has cited a part of the 10th Section of the bill of rights, which is in the following words, “ in all prosecutions by indictment or information the accused shall have a speedy public trial by an impartial jury, &c. That the accused in this case had a right to such a trial none is disposed to deny; the question is, was the method adopted for the examination of the jurors, and the proceedings on the’trial, calculated to prevent such a trial ? In this investigation the opinions of many eminent Judges of the Courts of different States, and some of the Federal Courts can be appealed to. Some of the questions which have arisen on this part of the record, may be considered as completely put to rest by numerous concurring adjudications. For instance, it has in some cases been much mooted, whether a challenge on account of a fixed opinion as to the merits of the case, was a principal cause of challenge. This has been settled in the affirmative. It has also been contended that a juror could not be interogated for the purpose of ascertaining, whether he felt a bias in favor of, or against a defendant *466’n>s f°r a Pu^'c offence. In The State v. Norrisd the Court was divided in opinion on this subject. But ever since the trial of Aaron Burr for treason before Chief Justifce Marshall, presiding in the Circuit Court of the States for the Virginia district in 1S07, all the Courts, both federal and State, so far as Í a'tn informed, bake Cb'nee'ded this privilege to the accused, Whenever it has been claimed. Although this has been the case, it has Continued unsettled what ijt is that forms such a bias aS will render a jufor incompetent. It cannot be doubted, at this day, that personal prejudice or dislike is not the Only groiintl of disqualification under this head. Whatever place's the jurof in a situation in which he has prejudged the case, equally demands his exclusion. For if. is certain that where the mind is convinced from a correct knowledge of the facts, or from that evidence which it believes to be of the highest nature, of the guilt or inno'cence of an individual, that mind cannot weigh testimony with the impartiality Which justice requires at the hands bf the juror. For instance, if A was present when a homicide was committed, and believed he saw all the attendant circumstances, a witness who swore to some facts entirely different from what A believed them to h¿?, Which tended materially to katy the guilt or innocence of the different parties, wotlld not make half the impression on the mind of A which he would do had A not been present. So if a man of respectability represent to his friend, that he had witnessed a homicide, and proceed to a minuto detail of the facts; a conviction would be fixed upon the-hearer, of the trdth of those facts, which would inevitably tend to prejudice the mind in the investigation of testimony. In either of these cases, particularly the former, a witness of equal respectability, whose testimony tended to confirm previons impressions, would find a much more bpen ear than one whoso evidence was of a different nature. That kind of conflict between witnesses which Would produce doubt in a person who knew nothing of the circumstances, would have no such effect on one Who-Stood In this situation. It seems clear therefore, that one' Who was present and saw the transaction, or who heard it detailed by one, in whom he had confidence, who' had Seen it, could riot be considered as the “ impartial juror” Which the constitution requires. In the Case of Vermilyea and others ex partee Judge Woodworth says, “ the late Chief Justice Spencer has stated the principles adop - *467.ted by him, in the trial ef Van Alstyne, for the murder of Iluddleslone. It was thus: “if a person had formed or expressed au opinion for or against the prisoner, on a knowledge of any of the facts attending the murder, or from information of those acquainted with the facts, he considered it good cause of challenge; but if the opinions of the jurors were formed on mere rumors and report, he decided that such opinions did not disqualify the jurors. The case of Vernhlyea and others had been tried in a Court of oyer and terminer held in the city of New York, and the defendants convicted of a conspiracy to defraud certain incorporated companies .and individuals, of their goods, chatties, and effects. On the trial William Nor-wood was challenged for principal cause. The juror stated, that “he had heard all the evidence given on a former trial of the same persons for the same offence, having been present dt k; that he had made up his opinion perfectly on the evidence, that the defendants were all guilty; and he had freqnently expressed himself to that effect.” Upon being inquired of by the district attorney, Restated that “ he felt no bias or partiality for or against the defen* dants; that if the teslimony given in this trial should appear as it did on the former, he should certainly find the defendants all guilty.; and added, that he thought he felt competent to give a verdict according to his oath, and the evidence as it should appear.” The Court decided that the juror stood indifferent, and he was accordingly sworn and sat on the trial. For this and other reasons application was mad.e for a writ of certiorari to transfer the case into the Supreme Court. Notice of the application was given, by the direction of the Judge, to the district attorney, of the city and county of New Yoik, and the questions presented were argued at length. The writ of cer - tiorari was oí dered; the judge expressing a decided opinion that the callengc should have been allowed. In the Supreme Court the case was ably argued, and the same judge delivered the opinion of the court at considerable length, which he concludes as follows; “My brethren or the bench concurring in the views 1 have taken, the consequence is, that a valid principal cause of challenge having been overulcd in the court below, a new trial must be granted.”
The case of Pollard v. the Commonwealthf goes as far in overruling a challenge on this ground as any mod<ern case I hay.e met with, though probably no farther than *468warranted by strict law. In that case an application was made to the General Court of Virginia for a writ of error, to a judgment of the Superior Court for the county of Cumberland, whereby the petitioner had been convicted of murder in the second' degree. The application was founded on an alleged error in the court’s refusal to sustain the prisoner’s challenge for cause, of a juror summoned to try him. It appeared, that, in the progress of the cause John H. Parker was called as a juror, and upon being sworn to answer questions said, “that he heard one of the witnesses testify in the case of the prisoner in the called court; that he did not know that he heard all the evidence given by that witness; that upon the evidence of the said witness he formed an opinion at the time, that he did not know that he expressed it, or did not; but thinks it most probable he did; that he had no prejudice against the prisoner or his cause at this time, that he believed he could give the prisoner as fair a trial as if he had never heard any thing on the subject.” The coux’f determined that the above circumstances formed no cause of challenge. The General Court, after conferring on the subject, decided that Parker was an impartial juror, and overruled the ap plication for a writ of error. >
It may be thought upon first view that this case conflicts with the opinions of judges Spencer and Woodworth; but upon examination it will be found that there is nothing irreconcilable between them. It does not appear what kind of testimony the witness heard; it may have been altogether circumstancial, and although it was sufficient to impress him with the idea that the accused was guilty, it is true; yet that impression must have been quite unsettled, which was evinced by the slight recollection he had with regard to it; and we must suppose had not made any such impression upon his mind, as closed it against the full effect of the testimony which might be offered on the trial. The common consent of ages declares that one who has fully heard the testimony in a cause, or even the evidence given before the grand jury, is liable to be challenged for cause, on the'trial of an indictment for a high crime or misdemeanor: The Statute 25. Edward III. c. 3. expressly enacts, that no indictor shall be put in inquests, upon the deliverance of the indictees of felonies or trespass, if he be challenged for that same cause, by him which is so indicted; and Hawkins observes that ‘‘this statute seems to have been made in affirmance of the common law.” *469Certainly then, if those who have received the evidence in an exparte manner, aro liable to be challenged for at common law, such as have heard the whole evidence are more objectionable. It seems therefore to be a reasonable conclusion, and one which is sustainable upon ity, that in such cases a juror who has received an account of the facts of a case from one who knew them/may be challenged, either by the accused or the prosecuting officer, for cause.
It is now necessary to consider whether this is the boundary of the rule, or whether it goes further. It is insisted by the counsel for the accused in this case, that wherever a juror has heard a common rumor or report with regard to a transaction for which the person on trial is indicted, and has expressed his opinion with regard to the guilt or innocence of the accused even hypothetically, he is liable to be challenged for cause. He has urged many ingenuous arguments in support of his position, and cited several authorities, which he contends sustain him. Among the authorities principally relied on, is the opinion of Judge Marshall given on the trial of Burr. It is difficult to ascertain from that opinion precisely what Chief Justice Marshall considered necessary to ¿sustain such a challenge, and the reason of this is apparent. He was not revising a case, by which it would have been necessary for him to have laid down a plain principle of law, but was taking those steps which were necessary to secure equally to the country, and the accused, complete justice. It was not material in securing this justice to the country, that the strict legal line should be drawn in the selection of jurors. Those who had never heard of the case, would have been as safe depositories of the dignity and rights of the United States as any other citizens, and there can be no doubt but the court felt inclined to go as far jin admitting challenges to prevail, as it could, while it secured the reasonable prospect of obtaining a jury to try the case. For this reason in many instances, jurors were ordered to stand aside that they might undergo a further examination in the event of the panel becoming exhausted. It is true that all the principles of law laid down by the court are sound as regards opinions which have been formed, and their effect upon the mind; this is obvious to every reader; but the difficulty is in reducing these principles to practice, and in laying down certain questions and answers, which will perfectly secure their due application. It is obvious *470this difficulty was felt on that trial; for at no time was particular set of questions prescribed, or a particular set of answers required. There was a general object in view, that was to ascertain if the jurors had such fixed opinions of the guilt of the prisoner as would prevent their doing him justice; and wherever there could be a doubt on that subject they were rejected; and from a commendable caution, in some instances when there could indeed be no doubt, but because it was expected that others more perfectly free from all objection even in the eyes of the prisoner, might be obtained. The Chief Justice observes in that case, “the-jury should enter on the trial, with minds open to those impressions, which the testimony and the law of the case ought to make, not with those preconceived opinions, which will resist those impressions.” And again, “It is admitted, that where there are strong personal prejudices, the person entertaining them is incapacitated as a juror; but it is denied that fixed opinions respecting his guilt constitute a similar incapacity.” It would seem therefore, if the opinions were not “fixed,” if they had been formed under circumstances which left “ the mind open to those impressions, which the testimony and the law of the ease ought to make,” they would not be sufficient to exclude a juror. In the: case of Burr several parts of the testimony were known by the community generally. Letters had been published, written by some of those who were to be witnesses on the trial; the newspapers in all quarters of the Union, had teemed with publications on the „subject; many of them professing to give the facts of the case. Persons who were in the habit of reading those publications and of attending to the proceedings of the government, were liable to have strong feelings and prejudices excited. The idea that an attempt was about to be made of a treasonable nature, against our happy political institutions, was calculated to arouse the resentment of men of ardent feelings, particularly against one who stood in the situation that Burr did; and a greater latitude should have been given to the accused to secure justice, than in ordinary cases. When we come, however, to examine the proceedings in that case, we shall find that almost the identical questions were put to some of the jurors, which were put to Hall in the CircuitCourt, and the same answers in substance given, yet it was determined that there was no ground for challenge for cause. The Chief Justice,g after dwelling upon the *471challenge of Basset in Calender’s case, says, “this was ing no father than Mr. Morris’ has gone, the against whom has been overruled. Mr. Morris had frequently declared that if the allegations against the prisoner were true, he was guilty, and Mr. Morris was mined to be an impartial juror.” I have dwelt the longer on this case, because it is one in which the subject Í am now examining, occupied more of the attention of the court than in any other which I have met with; and I do not think we are authorized to cometo the conclusion that an opinion of guilt formed from mere rumor or common report, is in any part of it determined to afford ground for a challenge for cause.
The case of Fries h decided in Pennsylvania by Judges Iredell and Peters, has also been relied on by the counsel for the defendant. That was a motion for a new trial. Two grounds were laid, the second of which was, “that there had not been an unbiased and impartial jury.” The facts were, that Rhodes, one of the jurors, after he had been summoned as such, declared at several places, at several times, and to several persons, in substance as follows; “That he was not safe at home for these people,i that they ought all to be hung, and particularly, that Fries must be hung.” The juror was confronted with the witnesses who attested these declarations and denied them, as pointed particularly at Fries; but admitted that ho had made a general expression, indicative of his disapprobation of the conduct of the insurgents. The prisoner was not apprised of these facts until after the jury was sworn. Iredell, Justice, was of opinion that a new trial should be granted because “one of’the jurois had made declarations, as well in relation to the prison personally, as to the general question of the insurrection, which manifested a bias or predetermination, that ought never to be felt by a juror.” Judge Peters did not think the cause sufficient, but yielded to the opinion of Judge Iredell, and the new trial was granted. It is obvious in this case, that Judge Iredell believed the juror had made the declarations with respect to the accused which were ascribed to him. He had declared that Fries must be hung. This was a possitive declaration, and appears to have been made witlqat least, a general knowledge of the facts of the case. The juror appears to have lived about the scene of the insurrection; and what made the case still stronger, was an apprehension of personal danger, and the peculiar manifestation of ill *472towards Fries. But are we authorized, from the report of this case to believe, that if the juror had declared, that “if the facts of the case were such as they were commonly represented to be, the accused should be hung; he believed them to be true, but if upon the trial the evidence should differ from the reports, he should be open to a conviction of his innocence,*’ that a new trial would have been granted? Far from it. In 3rd. Thomas’ Cokej we have this passage; “he that is of a jury must be liber homo; that is not only a free man and not bond, but also one that hath such freedom of mind as he stands indifferent as he stands unsworn.” We are not informed however, who it is that stands in this situation, and cannot presume that it includes all those who had heard reports about the circumstances of a case and formed vague opinions from them.
Upon my investigation of the authorities, I have arrived at the conclusion that the course pursued in the Circuit Court on this subject, did not violate any rule of law which has been laid down by other courts. Nor can I think that Justice requires such a rule, as the one contended for by the defendant’s counsel, now to be established. When opinions are expressed with regard to the nature of an act which is reported to have happened, those opinions; and the minds of the persons expressing them, are rather directed to the circumstances which have been detailed, than to the person who is said to have committed them. Suppose A is told that it is reported that B has without provocation put C to death or waylaid and murdered him, and immediately declares, if this be true he' should be hung. Can eny one believe for a moment that this ought to disqualify A from serving as ajuror on the trial of B? Surely it cannot be contended that this affords the least indication, that as a juror, he would be unable to weigh all the evidence which might be introduced, with the utmost impartiality. It is the natural exclamation of a generous mind, upon hearing of so foul a deed; a mind, which, as it hated crime, would be most apt to look with the utmost anxiety for some circumstances of mitigation, when the facts came to be examined. And if such would be the case when the single act of murder was declared, it would be equally so if a detailed accout of many transactions were given, tending to the same result. The very manner of making the declaration of the opinion, would evince an unwillingness to believe that the horrid crime had been *473perpetrated. But the consequences of settling such a princi-pie would be most unfortunate. The more heinous the offence, the wider and more rapidly a report of it spreads; and it would only be necessary that a crime should be of a most novel and alarming nature, to prevent the conviction of the culprit. The extraordinary character of the offence, would cause reports about it to be circulated through every neighborhood of the county, and produce a general expression of condemnation. The criminal himself, from the consciousness that it was his only hope of impunity, particularly if he had.wealth and friends, might artfully obtain an expression of the opinion, given upon rumor, of all the qualified jurors in the county, out of which, by our constitution, he could not be tried. My conclusion, on this branch of the case, is, that the decision of the Circuit court was right.
The fourth objection to the proceedings of the Circuit court, is, “ the discharge of one of the jurors, without the consent of the defendant, after he had been accepted by him, and sworn.”
It appears from the record, that John Stewart was sworn on his voire dire, pul on the prisoner and accepted by him, and sworn to pass on the trial. After six other jurors had been sworn, the counsel for the state, having ascertained that Stewart was not a resident, or a householder, or a freeholder, of the' county, moved the court to exclude him from the jury ; and after eleven jurors had been sworn besides Stewart, the court told the prisoner, that unless he then accepted the said juror, he would be discharged. The prisoner, by his counsel, said he declined expressing assent or dissent; and the court discharged the juror, against the prisoner’s objection.
But few authorities have been cited, and I believe, but few can be found, directly on this point, in cases which have been tried within that period of the English history, in which the rights of the subject have been properly appreciated. The authorities, however, so far as I have been able to examine them, are uniform. Lord Coke, in his first Institute, book 3, ch. Ü, says, “If a juror be formerly sworn, if he be challenged, he must show cause presently, and that cause must arise since he was sworn.” And so -Hawkins, in his “'Fleas of the Crown,” in his 2d volume, page 568, lays it down as a universal rule, “ that no juror can be challenged, either by the king or the prisoner, without consent, after he hath been sworn, unless it be for some cause which happened since he was sworn.” In Wharton’s case, reported by Yelverton, page 24, it appears, *474“ that upon the arraignment, Wharton, Young and Purefoy, being indicted of murder for the death of one Hallakinden, it happened at the first day, when the prisoners were to be tried, e^even jurors appeared and were sworn ; but one was challenged by the prisoners, and so, for that time, the trial wgs stayed. Upon a tales taken for the queen, at another day, when the jury appeared, one of the jurors, who had appeared before and was sworn the first day, was challenged, for a cause that was in ease the first day, but then not known to the queen, but which came since to the knowledge of the queen’s counsel. And, upon a doubt conceived by the court of King’s Bench, Yelverton, Justice, went into the Common Pleas, to know their opinion: and the opinionjwas, that the queen could not have the challenge now, no more than she could have had it the first day, after the juror had been sworn, although the same cause continues yet.”
It would seem, therefore, that the authorities, without contradiction, are opposed to the right of challenge by either party, for a cause which has happened before the juror was sworn. It has even been laid down as law, by some of the most learned ancient lawyers, that after a jury was sworn, it could not be discharged without a verdict, for any cause whatever.— Lord Coke, in his first Institutes, 227, (b) declares this to be the law — so that it was his opinion, that this could not be done by consent of all parties. Foster, Justice, however, in his opinion, in the case of the Kinlochs, denies this to be law, and he was certainly right. He says, that “ most of the objections which were made to the power, may receive this short answer, that they are levelled at an improper exercise of the power.”
In modern times, and particularly in the United States, the courts have often discharged juries, after they had been sworn, without their having rendered a verdict; but this, so far as I am informed, has always been done for some cause which happened after they were sworn. I know of no case in which this has been done, for any cause which existed before. Foster, Justice, in speaking of the discharge of juries in this situation, „ says : “ I take it to be one of those general questions, which are not capable of being determined by any general rule, that hath hitherto been laid down, or possibly ever may be. For I think it impossible to fix upon any single rule, which can be made to govern the infinite variety of cases, which may come under this general question, without manifest absurdity; and, in some instances, without the highest injustice.” He was *475certainly right, when he said no general rule could be laid down for the government of all cases of this kind, which may arise. Every ease must he decided upon its own peculiar circumstances, although there is a manifest distinction between the power of a court io discharge a jury after it is sworn, and the er of one of the parties, to make a principal, or othei challenge of a juror, after'he is sworn. Yet, I presume, much the same rules would now be applied to both. It appears to be clearly and distinctly laid down, in the authorities referred to, that nothing is a ground of challenge in a capital case, after a juror is sworn, but. something which happens subsequent to his being sworn. The authorities do not say, a juror may be challenged for some disqualification, which is discovered after he is sworn ; but only for that which happens after. I have seen no case- which conflicts with this rule. There is no doubt, were the accused to consent 1o such challenge, it would be as completely out of his power, afterwards, to take any advantage in consequence of it, as it would be to arrest or reverse a judgment because a jury had been discharged from rendering a verdict, by consent of the parties. But it is insisted, in behalf of the State, in this case, that if the trial had proceeded, the want of qualification in the juror objected to, would have been' sufficient cause for setting aside a conviction, and granting a new trial: and this would have been the certain result of proceeding with the trial, with Stewart asoné of the jury. If this be so, and Stewart was rejected from the jury, at a time when the prisoner could not have been injured by it, I agree, it would have formed one of those exceptions, which would have mode it the duty of the court, to act as it did.— But I cannot yield my assent to this position. It is true, the statute which prescribes the qualifications of jurors, is intended to secure the most competent citizens, to discharge-that important trust. But many persons, who are as competent as any others, to discharge the duties, have not the legal qualifications. It would be trifling with the solemnities of judicial investigations, to annul verdicts rendered by men, every way intellectually .and morally qualified, merely because one of them did not live within a particular county, or was not a householder. Besides, when the juror was called upon, it was in the power of either of the parties to have examined him, with respect to his qualifications; and by not doing so, the right, was waived. Nor can. the circumstance of the prisoner not having expressed assent or dissent to the proceeding of the court, be considered as having precluded him from now making the objection. *476By refusing to consent, he impliedly objeeted,‘and be cannot presumed to have agreed to yield up a juror, who had been previously elected by him, as one of his triers. But the prisoner may have been deprived of an important advantage, by the course pursued by the court. A list of the jurors had been served on him, to enable him to make a selection ot such as he was most willing to confide his life in the hands of. it is highly probable he had, among them, a first and second choice. Whenever, by a challenge for cause made by the state, he lost one of those included in the first choice, he would be compelled to resort to one, not so acceptable as the one thus challenged, but more so than others. Now, if Stewart was one of those included in the first choice, after he was sworn, one who stood among those placed in the second choice, would be given up, and, so far from being accepted by the prisoner, would be the subject of a peremptory challenge, while he considered Stewart as one of the jury. It would, therefore, have been less objectionable, to have discharged Stewart, when the objection was first made, than to have waited until after the pan-hel was full.
In every light,- in which I can view the subject, I am brought to the conviction, both upon principle and authority, that the Circuit court erred, in discharging the juror, Stewart, after he had been sworn, and without the consent of the accused.
It only remains to determine the effect of this decision.— I haye, in part, anticipated this part of my duty, but will give it a more particular examination. The question is, can he be tried again, or must he be discharged ? Our Bill of Rights, section 13, declares that “no person shall, for the same offence, be twice put in jeopardy of life or limb.” It is,insisted by the defendant’s counsel, that the prisoner’s life has once been in jeopardy, and that, upon a reversal of the judgment, he is entitled, under this provision, to a discharge. But, can it be the meaning of the constitution, that if, for one of the thousand inaccuracies, which may be committed in the prosecution of one, who is charged with a high crime, the judgment is arrested or reversed, this is intended to amount to an acquittal? The forms of proceeding in such cases, which are required by law, are deemed necessary to secure to the accused, a fair and Impartial trial; they were never intended to afford him the means of escape, without it. This provision could have had nothing more in view, than to prevent a citizen from being tried a second time, after a jury of his country had once acquitted him. Viewed in this light, it is a most valuable safe*477guard; but, considered in any other way, it would afford shield to the guilty, and probable impunity to the most artful.
According to general inference of law, all citizens are acquainted with the law. The man, then, who has been unlawfully convicted, is considered, not only as never having been-in jeopardjt, by the verdict which has been rendered against him, but as not even having considered himself so. But it is unnecessary to dwell upon technicalities : it. is plain that the construction given to the clause in the constitution, by which the prisoner would be discharged from further prosecution, cannot be sustained by it. It is true, cases have been cited in support of the position; but the reasoning is not satisfactory. The accused, having been tortured by the agony of an arraignment and trial, &c., can afford no argument on this subject. Many criminals, whose deeds of darkness have never been brought to light, have, no doubt, often, under the apprehension of discovery and punishment,' felt as wretchedly as they could have done, while hearing the sentence of death pronounced against them. A man’s jeopardy cannot be determined on by the extent of his fears. It is by legal rule that this must be ascertained; and so long as the rules of law protect him from punishment, without having passed upon his guilt or innocence, that long he has never been in jeopardy.
I admit, there are exceptions to this rule. If one, charged with a capital, or any other offence, has been put upon trial, and a jury sworn to pass upon his case, and that jury is discharged, by the act of the court, when the accused would otherwise have been acquitted, this will entitle him to a discharge from the prosecution. This position is established by the case of The People v. Barrett & Ward.a After the jury was sworn, fn this case, the district attorney served on Barrett, a notice to produce a promissory note, mentioned in the indictment, or that parol testimony would be given of its contents ; and asked his counsel if they were ready for trial, to which they answered, they were. The note not being produced, the district attorney offered the parol evidence. To this the accused objected, alleging the want of due notice, as the note was at a house, fourteen or fifteen miles distant; and the judge, sustaining the objection, refused to permit the parol evidence to be adduced. Whereupon, the district attorney moved for leave, to withdraw a juror, which was granted, without the consent of the defendants. On a subsequent day they were again arraigned, tried and found guilty, on the same indictment. This case was carried to the Supreme court of New York, for revi*478sion. In that court it was determined that the defendants should be discharged; but it was, evidently, on the ground, that they were entitled to their trial, upon such evidence as cou^ then ^ave kRCn adduced against them ; and, as the court had withdrawn the case from the jury, when the defendant had a right to their verdict, it was considered tantamount to an acquittal. Judge Livingston, in. delivering the opinion, says : £i .Without denying the right of courts to withdraw a juror, in criminal cases, and put the defendant on his trial a second time, it is evident this power should not be lightly used, &c.” “ We do not mean, at present, to define all, or any of the cases, in which this practice may be pursued ; but we all agree, that a defendant ought, in no case, to be put on a second trial for the same offence, where a juror has been discharged on no other ground than because the public prosecutor found himself unable to proceed, for the want of sufficient testimony to convict.” Thus, the right to award a new trial, after the discharge of the jury, without the consent of the accused, was recognised. That was determined to be a case, in which its exercise was improper.
In the case of The People v. Goodwin,a indicted for manslaughter, the jury, after having been out for several hours, and until within half an hour of the legal termination of the sessions, and not having agreed on their verdict, were discharged by the court. It was contended, that he could not again- be tried, on the indictment. Chief Justice Spencer gave an elaborate opinion in the case, and the court unanimously determined that the accused should not be discharged, but again be tried.
In the case of The People v. Olcott,b Judge Kent went into a fup examination of all the authorities upon the power of the court to discharge a jury, in criminal cases, and the consequences of its exercise. In that case, the jury, after having remained out from eight o’clock on Staturday evening, until near two o’clock the next day, and having, in the mean time, come into court two or three times, for advice, declared there, was no prospect of their agreeing in their verdect, and were discharged, without the consent of the prisoner. One of the questions was, whether the discharge of the jury entitled the defendant to a discharge from the prosecution, or whether he could again be put upon his trial? After examining and commenting on all the authorities, that celebrated jurist unhesitatingly decided that the defendant should be re-tried. Although this was a case of misdemeanor, the reasoning is entirely ap*479plicable to cases of felony ; and a perusal of it will satisfy the inquirer, that it comprehends every possible case of a trial for crimes.
In the case of The King v. Edwards,a the indictment was for a felony; and while the prosecutor was giving his evidense, one of the jurors fell down, in a fit, and he was pronounced by <1 physician, on oath, incapable of proceeding in his duty, as a juryman, that day; whereupon, the jury was discharged, and a new jury sworn, and, the defendant was convicted. The point, whether the prisoner could be tried, after the discharge of the jury, without consent, was argued before all the judges in England, except Mansfield, Chief Justice, and Lawrence, Justice; all the cases were cited, and the judges, without hearing the counsel for the crown, said, that it had been decided in so many cases, it was now the settled law of the country, and gave judgment against the prisoner.
In the case of the United States v. Coolige,b a witness refusing to be sworn, the trial was suspended during the impri sonment of the witness, for the contempt; and Mr. Justice Story held, that the discretion to discharge a jury, existed in all cases ; but that it was only to be exercised, in very extraordinary circumstances.
In the case of The Commonwealth v. Bowden,c upon an in In the case of The Commonwealths.Bowden,0 upon an in- and so late as the trial of one of the Knapps, it has again been repeated. In fine, authorities might be multiplied, without number, to the same effect; but I deem it useless to add to those already cited. All those authorities, however, agree, that the power of discharging juries, in cases of indictment, should be used with great caution.
From the examination which I have given this ease-and it has been a close and patient one-I am satisfied that the defendant has no right to a discharge, but that he shou'd be again tried on the indictment and, of this opinion is a majority of the court. -
Therefore, let the judgment be reversed, and an order made, that the Circuit court of Autauga county, award a venire de novo, &c.
JUDGE SAFFOLD concurs in the result of the majority. JUDGE PERRY dissents in part.Reversed and remanded.
2 Stewart’s R. 388.
19th Mass: R. 107.
2 Chitty’s Crim. Law 274-5.
1 Haywood 429.
6th Cowen R. 565.
5 Randolph R. 668.
Page 418.
3 Dallas R. 575.
meaning the insurgents.
Page 500.
2 Caine's Rep. 304.
18 Johnson, 187.
2 Johnson’s cases 301.
4 Taunt. 309.
2 Gallis. Rep. 364.
9 Mass. Rep. 494.