On Petition eor a Rehearing.
Niblack, C. J.— The appellant complains that the construction we have given to the second clause of section 1793, of the Revised Statutes of 1881, is in violation of those provisions of the Constitution of this State and of the Constitution of the United States, which guarantee to every person prosecuted for a criminal offence a trial by an impartial jury.
While the clause in question differs very greatly in its phraseology from its corresponding provision ih the criminal code of 1852, it amounts to little, if anything, more than a substantial re-enactment of the latter provision, with the constructions added which had been given to it from time to time *15by the courts. The object of its enactment was to afford a well defined judicial method of ascertaining whether a person, called to act as a juror is impartial within the meaning of the Constitution of the State as well as of the United States, and to declare what is necessary to constitute a person so called a. competent juror, having reference to his impartiality in the-cause.
The constitution does not assume to prescribe more than that: a j uror must be impartial, -leaving it to the Legislature and to-the courts to declare the condition of mind which constitutes-impartiality as applied to persons called to serve as jurors.
The clause of section 1793, supra, as construed by us, and to which objection is made, is really in aid, and, consequently,, not-subversive, of the constitutional guaranties that a jury in a criminal cause shall be impartial.
It was insisted in argument that the bill of exceptions show» that only four persons were sworn as jurors in the cause, and that for that reason the verdict could not be sustained, and it is now objected that no reference was made to that point at. the former hearing.-
In the first place, the record of the trial, as made by the clerk,, shows that twelve duly qualified persons were called and sworn, as jurors to try the cause, and there is nothing contradictory of this recital in the bill of exceptions.
In the next place, no question was made upon the motion for a new trial either upon the organization or the legality of the jury, and hence there was no such question as that argued in the record. 1 Graham & Wat. New Trials, pp. 9 and 10..
A motion in arrest of judgment raises no question except upon the jurisdiction of the court and upon the sufficiency of the indictment. R. S. 1881, section 1843.
Other questions have been argued and incidentally considered, but what we have said practically disposes of every question fully and fairly presented by the record.
Counsel for the appellant has displayed great Zealand earnestness in the prosecution pf this appeal, and the cause has. *16been ably and elaborately argued on behalf of the State as well as the appellant. We have given the cause that careful consideration which its importance has demanded. The evidence presents a most revolting case in its details, and appears to have fully justified the verdict. The judgment is one, therefore, which ought not to be reversed except for some palpable error which would afford a dangerous precedent. Nothing has been shown which would justify us in reversing the judgment.
The petition for a rehearing is overruled.