The indictment in this case charges the defendant Ellis Reece, and four others, with the crime of house-breaking. Upon the trial there was a verdict of guilty.
The defendants filed a motion for a new trial, based upon several grounds, one of which was that Joseph S. Morris, one of the jury before which the defendants were tried, was not a citizen of the United States. The affidavits in support of the motion also state that neither of the defendants knew or had reason to believe that Morris was not a citizen until after the verdict. These statements were not denied by the prosecution, but were admitted to be true. The juror, upon his examination under oath as to his qualifications, said he was a citizen of the United States. The motion for a new trial was overruled, and judgment was rendered on the verdict. The defendants appealed to this court. The only question before us is, Did the court below err in overruling the motion ?
The act of congress, approved June 23, 1874, commonly known as the Poland bill, provides that the clerk of the district court in each judicial district, and the judge of probate of the county in which the district court is next to be holden, shall prepare a jury list of two hundred names, citizens of the United States, from which grand and petit jurors shall be drawn. The criminal procedure act of this territory provides that “ every male citizen of the United States is an eligible juror, who is over twenty-one years of age,” and who possesses certain other qualifications specifically stated. The *76jurors being drawn from the list prepared in the light of these two statutory provisions, defendant may reasonably presume that the names of none but citizens of the United States are upon it, and we are of the opinion that when a man presents himself in court in obedience to a summons requiring him to appear as a juror, and in answer'to a question put to him under the direction of the court as to his qualifications as a juror, says he is a citizen of the United States, and the defendant in a criminal cause, charged with a felony, has no reason to doubt the truthfulness of said statement, such defendant may examine such juror as to his qualifications under the territorial statutes without further reference to the primal or fundamental qualifications of citizenship; although after the verdict he may learn that the juror was mistaken in his statement, and that in fact he was not a citizen, and not thereby waive his right to a trial by a constitutional jury of twelve men, possessing the qualifications of citizenship: Hill v. People, 16 Mich. 851; Quinn v. Hulburt, 52 Vt. 365.
As there was not only no intention to waive the qualification, but no negligence or want of watchfulness on the part of the defendants, which ordinarily would work a waiver of a right, we can not hold that the facts in this case ax-e such as should deprive the defendants of this important constitutioixal right.
The court is therefore of the opinion that the motion for a new trial ought to have been sustained, and a new trial granted; that the judgment of the district court be reversed, the case remanded, and a new trial ordered.
Hunter, C. J., and Emerson, J., concurred.