The prisoner moved, before judgment, to set aside the verdict, and have a new venire because of the denial of his prayer for a jury de medietate, which being refused, and judgment pronounced, the prisoner appealed. Judge Williams informed me that he allowed it at a court of oyer and terminer held at Wilmington many years ago for the trial of some prisoners who were aliens and natives of France. *Page 89
GASTON: It seems, then, to have been considered the law; the Legislature has not since altered it.
Attorney-General for the State. (204)
The Court differed in opinion, HALL and HENDERSON holding that the prisoner was not entitled to a jury de medietate, and the Chief Justice that he was, and they delivered their respective opinions seriatim, as follows: