I desire to discuss but one question.
B. F. Smith, a juror in the case, was neither a householder in the county of the trial nor a freeholder in the State. He was examined touching these facts, and on his voir dire qualified himself by swearing that he was a freeholder in the State. That he was not a freeholder was unknown to appellants or either of them or to their counsel, and the fact that he was neither a householder nor a freeholder was ascertained after verdict.
Hnder the above state of facts the counsel for appellants, upon the *74ground that Smith was neither a householder nor freeholder, moved for a new trial. This motion was overruled.
Was this error?
In the Criminal Law Magazine (vol. 6, p. 336) will be found a note to the opinion of Cooley, C. J., in the case of The People v. Scott. This note was written by Mr. Eugene McQuillan. In this note will be found two propositions:
1. “ The fact that a recognized cause of challenge existed at the time of the impaneling of the jury and was not discovered until after verdict will not per se constitute a ground for new trial.”
2. “Whether a new trial will be granted for this reason rests largely in the sound discretion of the court. The facts of each case must direct the judicial discretion. The essential question is one of prejudice to the prisoner. Have any legal rights been denied him? The error must be of the essence of his rights. Has the proceeding resulted in an unjust verdict?”
Before disussing these propositions I desire to notice our statutes on this subject.
Article 3009 of Revised Statutes of this State provides that “All male persons over 21 years of age are competent jurors, unless disqualified under some provision of this chapter.”
Article 3010 provides that “Ho person shall be qualified to serve as a juror who does not possess the following qualifications: * * * 2. He must be a freeholder within the State or a householder within the county.”
How if these were all the statutory provisions bearing upon this subject I would hold that a juror lacking these qualifications would be disqualified in the largest sense; that is if such a juror were to be impaneled the jury— the panel—would be illegal. There would not be a jury at all. The panel would' be composed of but eleven men.
But article 636 of the Code of Criminal Procedure provides as follows: “A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. It may be made for either of the following reasons: * * * 2. That he is neither a householder in the county nor a freeholder in the State.”
Article 639 of the same code provides that “no juror shall be impaneled when it appears that he is subject either to the third, fourth, or fifth cause of challenge in article 636, although both parties may consent.” The third clause is “that he has been convicted of theft or any felony;” the fourth “that he is under indictment or other legal accusation of theft or any felony;” and the fifth “that he is insane, or has such a defect in the organs of seeing, feeling, or hearing, or such bodily or mental defect or disease as renders him unfit for jury service.”
If such a person or persons as are described in these clauses were impaneled the jury, would be illegal—it would be no jury—and hence with*75out authority to render a legal verdict. Such persons can not be impaneled. This is expressly forbidden by the statute, though the parties may consent thereto.
I am of the opinion, from a comparison of the different provisions of the statutes bearing upon this subject, that unless the juror is subject to some cause of challenge named in clauses 3, 4, and 5 of article 636 of the Code of Criminal Procedure, he is not an illegal juror; that if impaneled the jury thus composed would not be without authority to render a legal verdict. Hence, if the objection to the juror be that he is neither a householder nor a freeholder, this would be ground for challenge for cause, hut if such a juror served the verdict would by legal. It would be the act of a legal jury.
And so a jury, one member of which had formed an opinion that the accused was guilty and should be convicted, would be a legal jury. Code Crim. Proc., art. 636, sub-div., 13. So with a jury including a member who was a non-voter in the State and county. Code Crim. Proc., art. 636, sub-div. 1.
But does it follow that because a jury thus composed is a legal jury that therefore the impaneling of such a juror under no circumstances would not taint the verdict so as to require a new trial to be granted in the case?
The law-making power of this State declares that no person, unless a householder in the State, shall be qualified to serve as a juror. It also declares that for the want of this qualification either party may challenge the juror.
While a jury composed of a person who is neither a householder nor freeholder may be a legal jury with authority to render a legal verdict—a verdict which is not absolutely void—still, under certain circumstances, may not a verdict rendered by such a jury be voidable? If so, under what circumstances?
I will return to Mr. Eugene McQuillan’s note. The propositions stated by him and inserted above are quite general and are wanting in specification. The first is that the fact that a cause of challenge existed at the time of the impaneling of the juror, and was not discovered until after verdict, will not per se constitute a ground for new trial. This proposition may or may not be correct. If the cause of challenge was such as rendered the juror incapable of serving on a jury, such as are enumerated in clauses 3, 4, and 5 article 636 of the Code of Criminal Procedure, then the impaneling of such a juror would be ground per se for new trial. And while it may be true that the impaneling of a juror obnoxious to challenge for cause, though the cause was not discovered until after verdict, may not per se be ground for new trial, this writer does not say or intimate that under no circumstances would the impaneling of such a juror be ground for new trial.
I admit the correctness of the rule as above stated, but it is of little *76value in solving the question in hand. If, under certain circumstances, the impaneling of such a juror may be ground for new trial, the question is, what must those circumstances be to authorize a new trial?
Suppose the juror is questioned by the court or by the defendant or his counsel, and under oath qualifies himself b.y stating that he is a freeholder in the State; that neither the defendant nor his counsel knew to the contrary, and that this fact was discovered after verdict. Would these circumstances, under the provisions of the statutes of this State, demand a new trial?
Before answering this question I desire to notice the authorities referred to by Mr. McQuillan in support of his first proposition.
About forty cases are cited, all of which, with few exceptions, I have examined, and I have not found a case in which it is held that a new trial will not be granted under the facts which present the question in this case. In fact, no case in the list cited contains a similar state of facts. After giving these cases a thorough examination I am prepared to state that more than two-thirds of them simply decide that as the juror was not tested by the court or defendant regarding the cause for challenge, it is too late after verdict, and for this reason the new trial was refused.
In some of the cases the new trial was refused for the reason that the defendant or his counsel knew of the cause of challenge before the juror was impaneled; or because the motion did not negative such knowledge. But in most of them the new trial was refused expressly for the reason that the juror was not tested on voir dire. Now, what the ruling on the motion for new trial would have been under the facts attending the question in this case we are not informed. But it is reasonable to infer that the motion would have prevailed. Why? 1. Because it was unnecessary, yea, foolish, to enter into a contest over the evidence adduced bearing upon the fact as to whether the juror had been tested or not as was done in several cases. 3. When the motion came up for the ruling of the court it would have been a sufficient reason for rejecting it for the court to say, “No injury is shown, and that is the test.” This would, in a great many cases, have eliminated from the motion all evidence offered for the purpose of showing that the juror had or had not- been examined touching his qualifications as to the cause of challenge relied on for new trial. Dilworth v. The Commonwealth, 13 Grat., 686. The issue—injury vel non—would have been the first to decide, and then inquire as to the diligence. But in none of these cases is the question of injury to the defendant discussed, except in cases in which the cause of challenge was bias or prejudice, or that the juror had before trial formed an opinion against the defendant.
The rule at common law was that no juror could be challenged by the defendant without consent after he had been sworn, unless it be for some cause happening after he was sworn; that “ the challenge propter defectum, *77should be made as the juror is brought to the book to be sworn. If not then made the defendant waives his challenge/'’ This rule was applied in Davis v. The State, 80 North Carolina, the facts being that one of the jurors was an atheist, which was not discovered by the prisoner until after verdict. In that case we are not informed whether the prisoner or his counsel knew of the cause of challenge before the juror was sworn, or whether the juror was examined as to this cause of disqualification or not. The common law rule cited seems to have been quite broad, and would have denied the right to the prisoner to urge as a ground for new trial any disqualification of a juror, without regard to the diligence used by the prisoner or any other fact. If the juror had formed a settled Opinion that the accused was guilty, had been questioned as to such an opinion, had under oath denied that he entertained any opinion as to the guilt of the prisoner, and if the prisoner and his counsel had been ignorant of such opinion, still under the rule cited there was no relief for the prisoner. I will not stop to discuss such a rule, remarking, by the way, that it does not obtain in any State of the Union.
Now I desire to state the rules which are applicable to the different state of facts which may ordinarily surround this question:
1. If a person is incapable of being a juror under any circumstances, a jury with such a person as a member would not be a legal jury, and a verdict rendered by a jury thus formed would be absolutely void. The prisoner could attack the verdict in a motion for new trial whether he knew of the disqualification or not, or whether he examined the juror touching such disqualification or not.
2. The juror being obnoxious to challenge for cause, as in this case, if the prisoner knew of the cause and failed to urge it before the jury is sworn, or if the juror was not examined touching his qualification, though the cause was not known to the prisoner or his counsel, he is presumed to have waived his objection, and will not be allowed to urge the disqualification for new trial. Our Supreme Court holds that if the juror had formed an opinion against the accused, or was prejudiced against him, he will not be deprived of the right to insist upon this as a ground for new trial, though he did not examine the juror upon his voir dire as to his prejudice when the jury was being impaneled. Hanks v. The State, 21 Texas, 526; Henrie v. The State, 41 Texas, 573.
3. If the juror is disqualified and is subject to challenge for cause, if he is examined on his voir dire and qualifies himself, his disqualification being unknown to the prisoner and his counsel, still the defendant can urge the disqualification as ground for new trial. Shumaker v. The State, 5 Wis., 324. In the case cited the juror was disqualified because an alien; and it also appears that he had not been examined as to that fact. Gilhooly v. The State, 58 Ind., 182. In this case the court say, “So if the defendant accepts a juror without questioning him as to his qualification *78he cannot afterwards object that the juror was neither a freeholder nor householder, both statutory qualifications. But if on his voir dire such juror misleads the court and the parties as to such qualifications, and is accepted as a juror, the defendant is entitled to a new trial.” To the same effect is Patterson v. The State, 70 Ind., 341.,
This question is elaborately discussed by Graham & Waterman in their work on Hew Trials, in reviewing the case of Briggs v. George, 15 Vermont, 6. After verdict for the defendant, the plaintiff in that case moved for a new trial on the ground that one of the jurors who sat in the trial of the case was not a freeholder, which fact plaintiff did not know at the time, the statute requiring,the jurors to be freeholders. A new trial was granted upon this ground alone. Judge Bennett dissented. His dissent rested mainly upon these grounds: That the objection to the juror was not such as affected his character or impugned the fairness or impartiality of the trial, and that no injury was shown.
Replying to these objections the authors say: “ The assumption of the learned judge who delivered the dissenting opinion in the foregoing case that the objection to the juror was not such as affected his character or impugned the fairness or impartiality of the trial, is deprived of all its force from being in direct contradiction to the law. The statute, by excluding such persons from the panel as do not possess certain prescribed qualifications, impliedly declares that those who enter the jury box without them are unfit to serve. Hor can the parties be presumed to know whether the officers charged with summoning jurors have complied with the necessary formalities and selected only such persons as are declared by law to be competent. They have a right to suppose that the officers have done so; nor would they be likely in the first instance to suspect to the contrary. If, therefore, they are not apprised of such objection until after verdict, they can not justly be charged with negligence or be deemed to have waived their rights. Unnumbered evils would flow from permitting courts to practically annul statutes by refusing to be guided by them, under the plea that it could make no difference with those for whose protection or benefit the statute was designed. Were such a course pursued, the justice and propriety of a statute, rather than the statute itself, would come to be regarded by courts; and the latter would arrogate to themselves the right to obey or disobey the law, according as it should meet their approbation or the reverse.
“ The law declaring that no person who is not a freeholder shall serve upon juries is founded upon grounds of public policy which demands that persons exercising so important a duty shall be owners of the soil, and therefore bound to law and order by pecuniary interest, and is intended as an additional guarantee to suitors that their rights shall be adjudicated upon and decided upon by responsible persons who have themselves something at stake and are dependent upon the correct administration of jus*79tice for the preservation of their own rights. But whether such a law be sound and wholesome or the contrary, we can not see that in principle it differs from other statutes regulating the trial of causes; that courts have any more right to treat it as a dead letter, or that parties are to be precluded from availing themselves of it either after or before verdict. It is true that where the cause has been fully and fairly tried on the merits the ordering of another trial is practically unnecessary, imposes great hardship upon the successful party, consumes the time of the court, multiplies litigation, and endangers justice. But still, the upholding and observance of the law is superior to all these considerations, and the least departure from it is so fraught with dangerous consequences as to render it imperative upon those charged with the administration of justice vigilantly and jealously to guard against every deviation.'”
In the above case the juror was not tested, the learned authors holding that this was not required, as the parties have the right to suppose that "the officers have done their duty by selecting only such persons as are declared by law to be competent. The case, though a civil one, is directly in point.
In it, however, a very important fact was omitted. The juror was not examined as to whether he was a freeholder. In the case now before us this was done. In the Briggs case the disqualification was not fatal to the panel. So we have admitted in this case. No injury was shown in the Briggs case, nor can injury be shown in this case, unless a deprivation of a legal right be an injury. See also The State v. Babcock, 1 Conn., 401.
But it is contended that injury must be shown. If this be so, then the discussion ends. If this proposition be correct, then thousands of pages would not have been written upon the doctrine of waiver. See this doctrine discussed in Graham & Waterman on New Trials, vol. 2, p. 220. Bead the discussions upon this doctrine in not less than a hundred cases to be found in the books of the library, but too numerous to be inserted here. Now, why enter into elaborate arguments relating to the failure to examine the juror as to whether he was a freeholder, householder, citizen, voter, an atheist, etc., if a new trial could not be granted unless injury is shown? It is absolutely impossible to show injury because a non-freeholder sat on the jury.
But it may be urged that if the juror was prejudiced or had formed an opinion against the prisoner, injury would be shown and a new trial would be granted. The new trial would be granted because of the prejudice or opinion, not because the juror was not a freeholder. His disqualification for want of a freehold would have nothing to do with the motion. The merits of the motion would rest upon the prejudice or opinion and not "upon the other cause.
Just here I wish to submit some observations regarding the second proposition of Mr. McQuillan. He says that injury must appear, and refers *80us to a number of cases in support of the rule. When these cases are consulted it will be found that the objection to the juror was prejudice or opinion against the prisoner. How, in passing upon the motion for new trial the courts, after hearing the evidence bearing upon prejudice or opinion, decide the question of prejudice or opinion formed, just as is done if the juror had been questioned on voir dire and answered stating the condition of his mind, or just as the question would have been decided upon the evidence adduced when the juror was being tested. If the juror was not prejudiced, or had not formed such an opinion as would render him partial, the challenge for cause would have been overruled. And so it is when this matter is brought forward in a motion for new trial.
In discussing this question it is frequently stated that no injury to the-prisoner appears. How, in a few cases, among which is found the dissenting opinion of Justice Bennett in the Briggs case, the absence of injury is urged as a reason for refusing a new trial. In the Briggs case the objection to the juror was a want of freehold. But in the overwhelming majority of cases the reasons for refusing the new trial are: 1. Knowledge of the cause for challenge when the juror was impaneled. 2. Failure in the motion to negative knowledge. 3. Waiver of objection because the prisoner knew of the disqualification or failed to examine the juror touching the disqualification relied on for new trial.
Were the appellants in this case deprived of a legal right? And if so, can they avail themselves of their rights by motion for new trial?
Before answering this question I desire to observe that as the appellants and their counsel were ignorant of the disqualification when the juror was impaneled, and as the juror, on oath, qualified himself by stating that he was a freeholder, no laches can be attributed to them, and hence the doctrine of waiver is not applicable.
The appellants occupy the same position as they would have done if the-juror had stated that he was neither a freeholder nor householder, and the appellants had challenged him for cause, and the court had overruled the challenge. Why? Because, being ignorant of the cause for challenge, and having used all the diligence required of them in reason and in law, and being misled, whether ignorantly or corruptly, they certainly can not-be held to have waived their right to demand a qualified juror.
Our statute excludes from the panel a person who is neither a householder nor freeholder, thus impliedly declaring that those who enter the-jury box without these qualifications are unfit to serve. In this case the-appellants, without any fault on their part or on the part of their counsel, have been tried by a juror declared to be disqualified and unfit to try them. Such persons are placed by the State, through her law-making power, under a very dark cloud; they are badly treated; they are not suspected merely, but are emphatically declared unfit to try a case; arid while it may be true that the disqualification is not such as affects the juror’s. *81character and impugns the fairness and impartiality of the trial, still the appellants have been deprived of a legal right without fault. This being the case, have they relief by motion for new trial ?
It is contended that our code forbids the granting of a new trial for this cause unless injury is shown. Let us examine this proposition. This should be treated as a practical question, and if this rule is to be applied to this question it should be applied in all cases requiring injury to be shown as a condition precedent to the granting of a new trial. What is meant by injury? Must there be injury in fact, or injury in law? If in fact, let us extend the rule to other phases of this subject and to distinct subjects.
Let us suppose, for instance, that the juror had disqualified himself by answering that he was neither a householder nor a freeholder; that the appellants challenged him for this cause; that the court overruled their challenge and permitted the juror to set in the case; and that the appellants objected, reserving their bill. This matter being brought forward in motion for new trial, should their motion for new trial prevail? By no means, if actual injury must be shown, because no injury appears, and can not possibly be made to appear.
Take another illustration: The prisoner challenges A peremptorily. The court overrules the challenge, and a bill is reserved. Can he obtain relief by motion for new trial? Hot if he must show actual injury. And in neither of the supposed cases can he obtain relief by motion in arrest, because there is no defect in the indictment.
Again, suppose he moves to quash the special venire in a capital case; that his motion is well taken, but is overruled, and he excepts. What is his remedy? By motion for new trial? Ho. Why? Because no actual injury is shown. By motion in arrest? No; because there is no defect in the indictment.
How, it will not be denied that in the cases put the prisoner would be entitled to a new trial. Upon what ground? Simply that, without fault on his part, he has been deprived of a legal right. Hence, in law, there is a legal injury, for which injury he has a legal remedy. If these propositions be incorrect, then, in the language of the distinguished authors of the quoted work on Hew Trials, “the justice and propriety of statutes, rather than the statute itself, would come to be regarded by courts, and the latter would arrogate to themselves the right to obey or disobey the law, according as it should meet their approbation or the reverse.”
In conclusion, upon this subject I desire to observe that, “ while it may be true, when a case has been fairly tried upon its merits, a new trial may appear practically unnecessary, imposing great hardships upon the successful party, consuming the time of the court, multiplying litigation, endangering justice, and liberating, in many cases, persons who are evidently guilty of the most atrocious crimes—yea, bloody-handed assassins— *82still the observing of the law is superior to all these considerations, and the departure from, it is so fraught with dangerous consequences as to render it imperative upon those charged with the administration of justice vigilantly and jealously to guard against any deviation.”
Concede that the appellants are guilty of murder of the first degree. Concede that they have been tried by an impartial jury. Concede that they deserve the severest punishment known to our law. Still they have not been tried by such a jury as is guaranteed to them by the State, the complainant in this case. The plaintiff in the case—the State itself—by its law-making power declares that unless a householder or 'a freeholder a person is not fit to try her citizens. Without fault, without loches, without negligence of any kind, these appellants have been tried by a juror who is thus condemned and repudiated by the plaintiff—the State. They have not been tried legally, but illegally. They have thus been tried without fault on their part. They have been denied a legal right. They certainly should have a legal remedy, which remedy is a new trial.
The writer was misled by Mr. McQuillan’s note, and was as much responsible for the opinion in this case as Judge Willson, who wrote it. But after having most thoroughly examined the cases cited in the note, he is clearly satisfied that the ruling of the court in the original opinion is wrong, and that a rehearing should be awarded and the judgment reversed.
Motion overruled.