On petition for a rehearing.
Howk, J.— On the 11th day of November, 1880, an opinion was filed by this court, reversing the judgment of the Marion Criminal Circuit Court in this cause, and remanding the case ■ for a new trial. On the 23d day of November, 1880, a petition for a rehearing of the cause was filed by the Attorney General, on behalf and in the name of the State of Indiana.
As stated in the petition, the rehearing is asked for, in this cause, “ for the reason that the court, in considering the case, mistook the contents of the voluminous record filed therein, and decided the case, supposing the record to show that incompetent jurors tried the appellant, when in fact the record showed that the jurors mentioned in the opinion of the court did not act as jurors in said cause, nor in any way participate in its decision, nor does the record show any injury to the appellant from the ruling upon her challenges to said jurors.”
The criminal code of this State has made no provision for the filing of a petition for a rehearing, by either the defendant or the State, in a criminal cause. In the case of Clem v. The State, 42 Ind. 420, the power of this court to grant the State a rehearing in a criminal case was denied by the appellant; but the point was not then decided, and it is still au open question. ‘We do not intend to decide this question now, although it is fairly presented by the *590petition of the State, in the case at bar; and we advert to it now, for the purpose-of expressly waiving the question, and of stating that our action in this regard is not to be considered as decisive of such question.
In the petition for a rehearing, the record of this cause is aptly described as a “ voluminous record,” as it contained in all about seventeen hundred pages of legal-cap manuscript. As voluminous and formidable as this record appeared to be, we were not apprehensive of mistaking its contents, and the questions presented and intended to be presented therein and thereby for the decision of this court, for the reason that the appellant and the appellee were alike represented by able and skilful attorneys, distinguished not alone for their legal learning and acumen, but also for their courtesy and fairness to each other and to the courts in which they practised. For the purpose of ascertaining the matters complained of as erroneous by the appellant, we looked to the elaborate brief filed by her counsel in this court, and not to the record of the cause; because it often happens, that questions saved, as errors, on the trial of a case, and presented by the record, are abandoned, and not insisted upon, by the party, on appeal to this court.
As we stated in our opinion, in this case, the appellant complained of the action or decision of the court in overruling her challenge for cause to each one of four named jurors; and much of the brief of her counsel was devoted to the discussion of these decisions, which she had assigned as cause for a new trial in her motion therefor. The examinations under oath of these four jurors, by the court and counsel, in regard to their competency as jurors in this case, and the court’s decisions in overruling the appellant’s challenges of said jurors for cause, were set out at length in the transcript filed in this court. The examinations of two of these jurors, namely, Benjamin Tyner *591and Jackson Dawson, showed very clearly, as it seemed to us, that, as to each of them, the court had erred in overruling the appellant’s challenges for cause.
In the well-considered and exhaustive brief of this cause, filed by the counsel for the State upon the original submission of the ease for our decision, the following language was used:
“As to the rulings upon the competency of jurors, we think the subject was exhausted in the second appeal of Guetig v. The State, and make no argument further than to cite an important and undoubtedly correct cáse, applicable to hypothetical opinions, and which has some application to the cases of several jurymen in this case. Burk v. The State, 27 Ind. 430. The court will understand the difficulty of getting an exact expression from a juror, as to the state of his miud, and the danger a man, not careful of his answers and not accustomed to exact use of language, is in of making absurd or contradictory replies ; but, upon reading the whole examination of each juror, we think it clearly appears that they were each competent under the rules settled iu Scranton v. Stewart, 52 Ind. 68, Guetig v. The State, and other cases.”
This is the entire argument of the learned counsel of the State, upon the' question of the competency of the jurors and the court’s rulings theréon, on the original submission of this case to this court. It is manifest therefrom, as it seems to us, that the counsel then thought that this question was fairly saved in and presented by the record' of this cause, and must be decided. Indeed, we think that the argument of counsel- above quoted was fairly equivalent to an express submission, by the State, of the question of the court’s rulings upon the competency of the jurors, to this court for decision', upon “the whole examination of each juror,” and the authorities cited. This court accordingly considered this'question, and decided *592that two of the jurors, Tyner and Dawson, were incompetent under the statute, as construed by the court, and that, as to each of them, the trial court had, in our opinion, clearly erred in overruling the appellant’s challenge for cause.
It will be observed, that, in its petition for a rehearing, the State has not questioned the correctness of this decision. But, for the first time, in this petition, the State by its counsel makes the point, that the decisions of the court, in overruling the appellant’s challenges for cause, worked no injury to the appellant, and were therefore harmless, because the record elsewhere showed that the jurors, Tyner and Dawson, did not act as jurors in said cause, nor in any way participate in its decision, and it may be fairly inferred from the record, that she had not exhausted the number of peremptory challenges allowed to her by law, when the jury was sworn to try the case. In other words, we are asked to grant a rehearing of this cause, in order that the State, by its counsel, may present for the first time a question for our decision, which question counsel ought to have presented on the original submission of the cause, but which they failed to present, for-the reason, as it might be supposed, that they “ mistook the contents of the voluminous record filed herein.”
In the case of Yater v. Mullen, 24 Ind. 277, it was said by Frazer, J., speaking for the court: “It is, by the well settled practice of this court, too late to present a question for the first time on a petition for rehearing.” This rule of practice has been recognized and acted upon by this court, in a number of more recent cases. Heavenridge v. Mondy, 34 Ind. 28; Brooks v. Harris, 42 Ind. 177; and Graeter v. Williams, 55 Ind, 461.
But, waiving this point, the question remains, have the rights and interests of the State, in the prosecution of the appellant, been prejudiced in any manner or to any *593extent by the fact, assuming it to be the fact, that either the court or counsel, or perhaps both court and counsel, “ mistook the contents of the voluminous record filed herein?” In other words, if the alleged mistake had not occurred, would or could the decision of this court, upon the question adjudged in the original opinion, have been materially different from what it was and is now ? These questions, we think, must be answered in the negative.
We may fairly assume, as the contrary is not shown by the record of this cause, that after the court’s acceptance of the jurors, Tyner and Dawson, as competent jurors under the law, they were excluded from the jury upon the appellant’s peremptory challenges. It has been well said, that peremptory challenges are given by “the abundant-humanity of the law,” to enable a prisoner to get rid of an obnoxious juror, as to whose competency there might be no valid objection But, whatever may have been the legislative intent in providing that the defendant, in a prosecution for a capital offence, “may challenge peremptorily twenty jurors,” it can not be correctly said, as it seems to us, that these peremptory challenges were allowed for the purpose of correcting the errors of the trial court, in overruling the defendant’s challenges for cause. There can be no doubt, we think, that the appellant was prejudiced and injured by the decisions of the court in overruling her challenges for cause as to the jurors, Tyner and Dawson, in this, that she was thereby compelled, as we assume, to use two of the peremptory challenges allowed her by law for other purposes, to l'elieve herself, as far as she could, from the erroneous rulings of the court on her challenges for cause.
The erroneous decisions of the court in overruling the appellant’s challenges for cause as to the jurors, Tyner and Dawson, were not cured or obviated, in our opinion, by the subsequent exclusion of said jurors from the jury upon *594her peremptory challenge, although it appeared that she had not exhausted her peremptory challenges, when the jury was accepted and sworn to try the case. It was so decided by the Supreme Court of Virginia, in the ease of Dowdy v. Commonwealth, 9 Grat. 727, upon the authority of Lithgow v. Commonwealth, 2 Va. Cas. 297, and Sprouce v. Commonwealth, 2 Va. Cas. 375.
In the case of The People v. Bodine, 1 Den. 281, it was decided by the Supreme Court of New York, that the fact that the defendant, in a criminal cause, did not avail himself, as he might, of a peremptory challenge, to exclude a juror who had been found indifferent upon a challenge for cause, would not prevent him from taking advantage of an error committed on the trial of the challenge for cause, although it appeared that his peremptory challenges had not been exhausted, when the empanelling of the jury was completed; and that, in such a case, the defendant was entitled to have his challenges for cause determined according to law, and to make or withhold his peremptory challenges, according to his pleasure. In the opinion of the court in that case, it was said: “ In no case is the prisoner bound to resort to his right to make peremptory challenges. It is armor which he may wear or decline at his pleasure. It is for his own exclusive consideration and decision, and the court has no right to interfere with his determination. Nor should the prisoner’s refusal to make use of her peremptory challenges, as she might have done, preclude her from raising objections to what was done by the judge: and if, in truth, errors were committed, I do not see that it is less our duty to correct them, than it would have been if the prisoner had fully exhausted her peremptory challenges. The use, or disuse, of that light, I regard as a fact wholly immaterial to the question now before the court, and one which can not, rightfully, exert the slightest influence upon the decision to be made.” Elsewhere, in *595the same opinion, it was also said, that the challenge for cause was not “ an idle ceremony which the judge may, in any case, overlook or disregard. He is bound, ex debito justifies, to receive the challenge and dispose of it as the law requires. He certainly would not be allowed to disregard a challenge for cause, and turn the party'making it over to his peremptory challenges; nor,in my opinion, can the fact, that the party still has peremptory challenges at his command, deprive him of any redress which the law would otherwise give, for a violation of his right.”
We are aware that there are respectable authorities which would sustain a different conclusion from the one', we have reached, on the subject now under consideration. It seems to us, however, that our decision is fully in harmony with, and sustained by, the criminal code of this State, and that its tendency will be to secure to all persons charged with crime a fair trial by an impartial jury of competent jurors, under the law.
The petition for a rehearing is overruled.