Refusal to Permit Filing of Application for Rehearing.
The filing of an application for a rehearing on the overruled motion for his discharge on the ground of former jeopardy was refused.
On appeal it is manifest that the defendant’s application could not be entertained.
Errors may be recalled and corrected at any time when apparent,
The defendant can not, as a right, have points arising during the trial reconsidered that have been fully argued by counsel and have received ample consideration from the court.
He has ample opportunity at subsequent stages of the case to be heard anew.
Appeal. — The defendant also moved for an appeal, averring that he had a right to his acquittal after the juror Hayes had been removed from the panel.
And that this right having been refused, from the order' of refusal he desired an appeal, for which he applied.
The issues of a case can not thus be divided.
They are now, in proper time, before the courts after trial.
Any appeal prior to that taken would have been premature.
Removal of the Juror from the Panel.
In the bill of exceptions counsel in behalf of the defendant state that upon the application of the district attorney, against their objection upon hearing evidence as to the juror’s competency, which *202was reduced to writing and made part of their bill, U. A. Hayes, one of the jurors who had been sworn, was removed from the panel, and the district attorney proceeded in the selection of another juror.
The court’s statement, made part of the bill, is that there was satisfactory reason for the removal; that the answers to questions put on the voir dire and evidence taken on the motion bo discharge in respect to the subject of capital punishment was so equivocal and uncertain as to render him an unfit juror. In another bill referring to the same testimony he says that his statements were inconsistent and untrue.
The testimony taken on the motion to exclude the juror shows that he swore on his voir dire to his not being conscientiously opposed to capital punishment.
Prior to his examination on his voir dire, but after he had been summoned as a tales juror, he said to several witnesses that he would not be accepted as a juror by the State for he was opposed to capital punishment.
When examined as a witness on the motion to exclude him as a juror, his answers did not satisfy the trial judge that he was nob conscientiously opposed to capital punishment.
The question arises in this case, can a juror be challenged on moral grounds after he is sworn and just prior to opening the case before the jury by reading the indictment?
In reference to the moral character of a juror this court decided that the trial judge is authorized to exclude a juror from the panel if satisfied of his unfitness morally to serve. State vs. Lartigue, 29 An. 642.
The same principle is laid down in State vs. Barnes, 34 An. 396; People vs. Damon, 13 Wendell,-357.
Jeopardy not having attached, it was not too late in the stages of the case to exclude the juror.
The court was satisfied that the juror was not legally fit to discharge the duties incumbent upon him in a case in which the accused is charged with murder, and, therefore, exercised a sound discretion, after having heard testimony, in discharging this juror. If the authority could be exercised after the third juror of the panel had been sworn, as in the Disken case (34 An.), it could be exercised after the twelfth juror had been sworn, prior to the examination of witnesses.
*203If legal in so far as relates to the third or fourth juror, it follows that it is legal as relates to the juror last sworn, and at all times prior to jeopardy.
The purpose of the law and of the State is a fair trial, unaffected by bias or prejudice.
It must be made manifest that the juror has no conscientious scruples against capital punishment; that he entertains no opinion affecting his competency.
To be sure, says the court, in the ease of the United States vs. Joseph Perez, 9 Wheaton, 579, the authority of excluding a juror should be used with the greatest caution, under urgent circumstances and for very plain and obvious causes.
The necessity for removal may be moral as well as physical. 11 An. 283.
In such a case the disqualifications having been discovered subsequent to the oath, before the opening of the case before the jury, the motion to remove the juror was properly allowed.
Mr. Wharton states that it has been ruled, after a juror has been sworn in chief and taken his seat, if it be discovered that he is incompetent to serve he may, in the exercise of a sound discretion, be set aside by the court at any time before evidence. And this in ay be done even in a capital case as well for cause existing before as after the juror was sworn.
The obnoxious juror may be removed, although he has been sworn, if no evidence has been introduced. Thompson and Merriam, Sec. 273.
Refusals of Peremptory Challenges.
The question comes up as to the right to peremptory challenges, and as to whether the trial judge was bound to restore challenges to the accused.
The issue presented upon this point is of great moment.
Its decision has occasioned us the greatest concern.
Had the juror testified on his voir dire so as to disclose all the facts and circumstances that were made known afterward, he would not have been accepted as a juror.
The court a qua became satisfied from testimony subsequently heard that he was incompetent.
*204Was the defendant deprived of any of his legal rights in this matter of challenges?
His challenges were exhausted prior to the examination of the twelfth juror on his voir dire; had the juror made the statement which was subsequently disclosed he would have been discharged, and the accused would have been without a peremptory challenge to oppose to any juror subsequently called, as he was when another juror was called to serve in his place.
To this stage of the case the jurors had been regularly sworn and accepted.
To swear them a second time so as to allow twelve more challenges would have increased the number of challenges to more than twelve in empaneling the jury.
The language of the court in Stone vs. The People, 2d Scammon, p. 330 (Illinois), is clear and emphatic.
The juror was withdrawn for ineompetency, being an alien.
The trial had commenced and witnesses for the prosecution had been sworn. The remaining eleven jurors were all competent, says the court, in that case and had all been chosen and accepted as well by the prisoner as the prosecutor — that it would have been irregular to have discharged them without his consent. It would have deprived the prisoner of a right secured to him, and which had been consummated under the law. That the court by withdrawing the incompetent juror corrected the error to the extent occurring and could go no further; that the case is sui generis, and should be decided on principles of analogy.
“Why is a court, for the ends of justice, and where manifest error exists for the act, authorized to discharge a jury? And if a whole jury may, in such a case, be discharged, why not set aside a person improperly selected and sworn?
“ That no injustice has been done; no law; has been violated. That the rights of the prisoner have not been infringed; the course is agreeable to justice and we can perceive no wrong in the mode adopted.”
In this case the accused was indicted for murder and the judgment affirmed.
In the case of State of Nevada vs. Pritchard, 16 Nevada, p. 102, this ease is approvingly referred to, and the court held that an incompetent juror, after the jury is sworn, may be discharged with*205out a necessity for the discharge of the eleven remaining competent jurors.
In a Tennessee case, that of Taylor vs. The State (Lea, Yol. II, p. 718), the court held that no serious argument had been submitted against the propriety of the discharge, but that the point was made that the court should have at the same time discharged all the jurors, because of the fact that the incompetent juror had associated with the residue of the panel for two days. That the court might have discharged the entire jury, if, in the exercise of his discretion, he had thought the ends of justice required such action. That the question was whether the trial court was compelled by law to discharge the jury merely because one of the jury had previously formed and expressed an opinion adverse to the defendant? That the defendant did not object to the other jurors because of their association with the incompetent juror, nor ask for their discharge, nor offer to show that anything improper had passed between them and the discharged juror.
“ That upon principle, in the absence of anything else, the mere association of selected jurors with one of their number who had formed and expressed an opinion as to the guiR of the defendant would no more render them incompetent than such association previous to the trial; that no decision has been cited holding otherwise.”
See also Ray vs. State, 4 Texas, 454.
The twelfth juror in that case (4 Texas) was excluded some time after the opening of the case and hearing of testimony by the jury.
The case is cited as an additional decision in support of the ruling excluding the juror before evidence had been heard, and not at all with reference to ousting a juror after the indictment has been read to the jury and evidence heard.
Courts have gone to the extent of holding that—
“ Where a case has been tried by an impartial jury, although the judge, on the application of one of the parties and against the consent of the other, may have rejected a juror for cause of questionable sufficiency, such rejection does not afford a ground of complaint if justice has been done in the premises. In other words, while dis-allowance of a cause of challenge will work a reversal of the judgment, an improper allowance of a cause of challenge will not necessarily have this effect. A qualified juror may be rejected, and still a jury of lawful men, against whom there is no objection, may be *206obtained. A party is entitled to a lawful jury, but be is not under all circumstances, as a matter of right, entitled to have the first juror called who has all the statutory qualifications.” Thompson and Merriam, p. 298.
We do not base our conclusion on this principle of practice, for in the case at bar the court’s ruling appears supported by a preponderance of evidence establishing cause for removal of the juror.
If there was no good ground of complaint when the cause of removal was of “ questionable sufficiency,” there is surely none when the trial judge states as part of one of the bills on the subject: “ The court in its reasons said that the discharge was based on sufficient reasons, as would appear of record. In addition, I have to say this record shows incontestably that this juror had said out of court that he was opposed to capital punishment, and in court has sworn just the reverse. It does not matter whether this opposition was conscientious or otherwise, or that he, on examination, attempted to explain it on metaphysical or other grounds — it suffices to say that he swore falsely, for both statements can not be true.”
This court in two cases — State vs. Moncla, State vs. Disken—affirmed the rulings allowing a juror to be withdrawn after he has been sworn.
In the former the peremptory challenges had been exhausted and the jury sworn, when another juror was called to serve in the place of the juror withdrawn. In the case at bar the juror was excluded for cause at a later stage in empaneling the jury, and before jeopardy attached. As precedents these cases have a bearing upon the issues presented.
Refusal to Reduce Evidence to Writing.
The next ground of objection is to the ruling in refusing to have reduced to .writing the evidence relating to an alleged overt act.
- The defendant asked that the testimony of a number of witnesses, including his own, be reduced to writing in order that it might be made part of the record for the purpose of showing who began the attack in the difficulty, and to lay the foundation for the intz’oduction of threats, communicated and uncommunicated, and to introduce evidence of the character of the deceased as that of a dangerous, quazTelsome and vindictive man.
The following is the court’s statement in the bill of exceptions:
*207“So far as concerns the testimony of the witnesses offered to show whether accused or deceased began the attack, it is sufficient to say that these witnesses actually testified before the jury on this point, but the court did refuse to permit their evidence to be reduced to writing and refused to receive evidence of communicated threats or bad character until some overt act was'proved, which was not done.”
This court has repeatedly exercised the constitutional authority of reviewing the finding or ruling of district judges on questions' of blended law and facts.
This authority is limited so as not to embrace within its scope the review and determination of facts touching the merits of the prosecution.
The record discloses a positive solemn statement of the district judge that no overt act was proven.
That is his reason for the refusal to reduce the evidence to - writing.
New Trial.
At the risk of repetition we will give consideration again to an important point, already decided, which is presented in this motion.
The other grounds of the motion also were previously presented and decided.
It relates to the alleged “overt act” on the part of the deceased at the time of the killing and the refusal of the trial judge to reduce the testimony to writing and made part .of the record for the purpose of enabling the Supreme Court, in the event of a conviction, to pass upon the question as to whether there had been proof of an “overt act” upon the part of the deceased at the time of the killing, and before the defendant made any assault upon the deceased, and for the purpose of authorizing the defendant to introduce evidence of threats to kill defendant, and of other personal violence made by the deceased just prior to the killing and which were communicated, it is alleged, to the defendant, and of other threats not communicated to the defendant, all for the purpose of laying the foundation to the admission of testimony.
The district judge, passing upon the point presented anew in the motion for a new trial, says:
“If the evidence was offered to show that deceased began the attack, or did some overt act to carry out his threats, the evidence failed to prove to the satisfaction of the court that deceased com*208menced the attack or did any overt act or made any demonstration of an attack.
“ There was some evidence tending to show a hostile demonstration on the part of the deceased, yet it appeared to the court from all the facts and circumstances, and specially from the testimony of three persons * * * who were eye-witnesses of the affray and saw it from its inception to its close, that no hostile demonstration by deceased had been proved.”'
In Arrest oe Judgment.
The grounds of this motion have been considered and decided.
They presented no undecided points.
The verdict was rendered and the sentence pronounced after a legal trial.
It is therefore ordered, adjudged and; decreed that the verdict, sentence and judgment are affirmed.