dissenting:
I am of opinion that the record affirmatively shows that the defendant waived his right to interpose a peremptory challenge to the juror Appleburg.
The rule is universal that a party, either in a civil or criminal action, may waive any statutory right, unless the .observance of it is imperatively required.
As a general rule counsel can not consent by their presence and by their silence to any action of the court, and afterwards avail themselves of an objection thereto, which could, and should, have been made at the time.
These principles are elementary and, if applicable, conclude the defendant from complaining of the action of the court in this case.
Are they applicable? I am of opinion that they are. Why not?
It must be admitted that the court had the right, under the authority of The State v. Anderson, 4 Nev. 265, to have sworn the juror, in the first instance, when counsel refused to interpose any peremptory challenge, and if it had done so the defendant would thereby have been deprived of the opportunity to interpose a peremptory challenge at any time thereafter, except within the discretion of the court. Now, this being true, what magic can be found in the language of the statute that wipes out the refusal of counsel to assert their rights when clearly and distinctly informed by the court that if they are not asserted they will be considered as waived ?
Under the provisions of the statute a defendant in a criminal action is entitled to a certain number of peremptory *94challenges. This right can not be abridged by any rule of court. It is, however, always oj>tional with the defendant to avail himself of this right or not.’ It is a personal privilege given to him by favor of the legislature, and may be waived or asserted by him according to his judgment, caprice or pleasure. (State v. McClear, 11 Nev. 53.) The defendant has not put himself in a position to complain of the action of the court. He was not denied the right to exercise his statutory privilege. The opportunity was given him to interpose his peremptory challenge at the proper time, and he refused to avail himself of it or to take any exception whatever to the action of the court.
The supremo court of this state, in The State v. Roderigas, held that the district court did not err “ in compelling the defendant to accept or challenge peremptorily each juror, as it was found there was no ground to challenge him for cause.” The court said: “This exact point was decided against the defendant in the case of The State v. Anderson, 4 Nev. 265, and we are not now disposed to question the correctness of the views there expressed.” (7 Nev. 335).
If these decisions are correct, and they are so considered by a majority of the members of this court, it necessarily follows, in my opinion,, that either the state or the defendant may, upon the trial, demand that the jurors be sworn whenever it appears that there is no ground of challenge for cause, and the respective parties refuse to interpose a peremptory challenge; and that the prevailing practice in this state of not swearing the jury until the panel is complete, is clearly erroneous, and can not, in any case, be sustained, unless it affirmatively appears that both parties expressly waived their statutory right, or by their presence and by their silence consented to such a mode of impaneling the jury.
It can not, in my opinion, consistently be claimed that the statute authorizes two or more separate and distinct modes of impaneling a jury, although there áre expressions used in The State v. Anderson, which would seem to imply that the courts were authorized to pursue a different practice from the one stated.
*95The error, therefore, which the court committed in the present ease was in not impaneling the jury in the mode adopted in The State v. Anderson. But how can defendant, upon the state of facts set out in the record, complain that this error was or could possibly be prejudicial to him ? He did not ask that the jurors should be so sworn. He did not object to the mode adopted by the court. Did he not, by his silence, AvaiA'e his statutory right to have the jury SAvorn at any particular time ?
The statute of this state does not provide that the respective parties shall alternate in taking their peremptory challenges; yet it is the common and proper practice, so to do. Suppose that counsel for the defendant should be cajiricious and refuse to consent to this method of challenging, could not the court, following the rule established in The State v. Anderson, enforce this practice by swearing the jurors whenever the defendant refuses to exercise his right of challenge ? It certainly could.
"Was the practice adopted by the court in this case more prejudicial against the defendant? Certainly not. But eA-en if it Avas, does it not necessarily follow, under the Avellestablished principles of Hav, that the defendant could not avail himself of the error Avithout showing that he objected at the time ? Can he by his silence consent to such a practice, and afterAvards complain ? Can he waive his challenge and afterwards demand, as an absolute right, that it should be restored to him ? Is it not thereafter exclusively within, the discretion of the court to allow him this privilege or not ?
If a party waives his right to interpose a peremptory challenge, he must abide by his waiver. He should not after-wards be permitted to resume his challenge. If he keeps his objections back, at a time when he ought to make them known, for an improper reason, or from motives of mere caprice, the discretionary power of the courts to declare his right of challenge waived ought not to be denied. (Patton v. Ash, 7 Serg. & R. 123; McFadden v. The Commonwealth, 23 Pa. St. 17; Commonwealth v. Dougherty, 8 Phil. 440.)
The law is well settled that if a prisoner or his counsel know of any cause of challenge against a juror, and fail to *96take it when the juror is examined upon his voire dire, be can not avail himself of the defect afterwards. (State v. Anderson, 4 Nev. 265; State v. Rigg, 10 Id. 284; State v. Borowsky, 11 Id. 127; People v. Stonecifer, 6 Cal. 405; State v. Fisher, 2 Nott & McC. 264; Brown v. State, 52 Ala. 345; Keener v. State, 18 Ga. 215; Croy v. State, 32 Ind. 384; Gardiner v. The People, 6 Parker Cr. R. 195.)
Under the provisions of the statute an alien is exempt from jury duty. If objection is made upon that ground the alien is excluded; but if no objection is made, the acceptance of the juror, as in the cases above cited, is deemed a waiver of the statutory right of exclusion. (Hollingsworth v. Duane, 4 Dal. 330; Wallace, Ct. Ct. 147; State v. Quarrel, 2 Bay. (S. C.) 150; State v. Vogel, 22 Wis. 471; Turner v. Hahn, 1 Col. 28.)
The same rule applies where the juror is incompetent by reason of bis age. (Williams v. The State, 37 Miss. 407.)
These authorities (and numerous others might be cited) all show that the general practice of the court requires every litigant in criminal as well as civil causes to take advantage of bis rights at the proper time, and if be fails to do so, bis neglect will be considered as a waiver.
If the rule, as declared in The State v. Roderigas, is correct, then, it seems to me, the defendant in this case certainly waived bis right to interpose a peremptory challenge to the juror Appleburg at the proper time for its exercise; and in my opinion it was thereafter within the discretion of the court to refuse or allow him to exercise such challenge.
This discretion may be reviewed by this court. I am, however, unwilling to say that tbe court abused its discretion in this case, although, in my judgment, tbe better practice would be, especially in capital cases, to exercise this discretion in defendant’s favor unless it clearly appears that bis request is unreasonable or merely capricious.
The other points presented in tbe record have all been settled adversely to appellant by previous decisions of this court.
In my opinion tbe judgment of tbe district court ought to be affirmed.