
    State vs. Moffatt.
    An indictment against a person summoned as a juror, for having falsely sworn as to his having formed or expressed an opinion as to the guilt or innocence of defendant, must state that it became material to ascertain whether the juror had formed and expressed an opinion of the guilt or innocence of the defendant, and that an issue as to the qualifications of tbe jurors'generally, or of the juror in particular, had been made by the parties and submitted to the court.
    An indictment was found against Moffatt for perjury in the circuit court of Bedford county.
    This indictment is in the following words:
    “State of Tennessee, Bedford county, Circuit Court for said county, August term, in the year of our Lord eighteen hundred and forty-six. The grand jurors for the State of Tennessee, elected, empanneled, sworn and charged to enquire for the body of the county aforesaid, upon their oaths aforesaid; present, that there was, on the eighteenth day of December, in the year eighteen hundred and forty-five, a certain cause pending in the Circuit Court in the county of Bedford aforesaid, wherein the State of Tennessee was plaintiff, and one William G. McEI-wrath was defendant, upon an indictment against the said William C. McElwratb, for the alledged murder of one John Taylor, and that the said cause came on to be tried before the Hon. Samuel Anderson, judge of the fifth judicial circuit of the circuit court of said State, at the court-house in the town of Shelbyville, in said county, on the said eighteenth day of December, in the year aforesaid, and that a question as to the competency and qualification of the jurors summoned to try the said cause, was then and there submitted to the said court, for the determination of the said court, and was by the said court, then and there decided.
    And the jurors aforesaid, upon their oath aforesaid, do say that one William Moffatt, late of said county, yeoman, on the day and year aforesaid, being duly summoned as juror in said county, was tíren and there presented and offered asa juror on the trial of the said cause, wherein the State of Tennessee was plaintiff, and the said William C. McElwrath was defendant, when and where it became a material question on the trial of said cause,before the said court, as to the competency of the. said William Moffatt, as a juror in said cause, whether or not the said William Moffatt, being offered as a juror aforesaid, had formed or expressed an opinion relative to the guilt or innocence of the said William C. McElwrath, charged with the alledged murder aforesaid. And the jurors aforesaid, upon their oath aforesaid do further present and say, that the said William Moffatt, on the day and year aforesaid, in the county aforesaid, was then and there duly sworn (and took his corporal oath upon the Holy Evangelists of Almighty God) by John S. Niel, clerk of the circuit court of the county aforesaid, the said John S. Neil, as such clerk, then and there having sufficient and competent power and authority to administer an oath to the said William Moffatt, in that behalf, that he would true and perfect answer make to such questions as shall be put to him under the directions of the said court, when and where after being duly sworn as aforesaid, by the said John S. Neil, clerk as aforesaid, the said William Moffatt, amongst other things, was asked by the said John S. Neil, clerk as aforesaid, under the direction of the said court, the following questions, to wit: “Have "you formed or expressed an opinion, relative to the guilt or innocence of the person at the bar,” meaning the said William C. McElwrath, then at the bar of the said court on trial. And the jurors aforesaid upon their oaths aforesaid, do further present and say, that the said WTilliam Moffatt, not having the fear of G.od before his eyes, but being moved, and seduced by the instigation of the devil, on the day and year aforesaid, in the county aforesaid, being sworn as aforesaid, by the said John S. Neil, clerk as aforesaid, then and there having sufficient and competent power and authority to administer an oath to the said William Moffatt, as aforesaid in answer to the said question put to him as aforesaid, by the said John S. Neil, upon his corporal oath aforesaid, did then and there, wil-fully, absolutely, corruptly, falsely and feloniously depose and swear in substance, that he had not formed or expressed an opinion, as to the guilt or innocence of the person at the bar, to wit: the said William C. McElwrath, and having answered as aforesaid, the said William Moffatt was then and there elected by the State of Tennessee plaintiff, and the said William G. McElwrath, defendant,as one of the jurors to try the said cause, whereas in truth and in fact, the said W illiam Moffatt at the time he was so sworn and examined as aforesaid, and elected, as aforesaid, as one of the jurors on the trial of the said William C. McElwrath, well knew that he had both formed and expressed an opinion as to the innocence of the said William C. McElwrath upon the said indictment against him for the alledg-ed murder of the said John Taylor, and that the said William Moffatt had both formed and expressed an opinion as to the innocence of the said William C. McElwrath, and so the jurors aforesaid on their oaths aforesaid do say that the said William Moffatt on the day and year aforesaid, in the county aforesaid, on the trial of the said cause in his answer to the question aforesaid, did then and there, in manner and form aforesaid, commit wilful and corrupt perjury, to the great hindrance of public justice, to the great displeasure of Almighty God, in contempt of the law of the land, to the evil example of all others in like cases offending, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
    This indictment, at the December term, 1846, (Samuel Anderson, Judge, presiding,) was quashed, and the Attorney General, on behalf of the State, appealed.
    
      Attorney General, for the State.
    
      Ready, for defendant.
   TtjRLEy, J.

delivered the opinion of the court.

This is an indictment against the prisoner for having committed perjury, upon his examination, as to his competency to sit as a juror in a criminal case, in swearing, that he had not formed or expressed an opinion as to the guilt or innocence of the accused. And the question is, whether the allegation of the perjury is legally laid in the bill of indictment.

Bills of indictment for questions of this character, being new to our law, are very difficult of proper formation, and exceedingly perplexing to the court.

We have had but one case of the character before us, in which we attempted, with particularity to describe what the bill should specify and aver. And we feel satisfied that the Attorney General in drawing the bill in the case under consideration, drew it with a view to what is required by that case: and yet, we feel ourselves constrained to say, that the substance of these requisites is not contained therein.

The case referred to is, that of The State vs. Wall, 9 Yerg. 347. From an examination of that case, it will be found that the bill of indictment contained three counts: and, that they in substance, charge, that the prisoner was offered as a juror, and that it became necessary and material to ascertain, whether he had formed or expressed an opinion as to the guilt or innocence of the prisoner on trial; and that being duly sworn, he falsely swore, that he had not formed, or expressed an opinion as to the guilt or innocence of the prisoner, when in point of fact, he had both formed and expressed an opinion, and that he swore falsely in that respect.

This indictment was quashed; and upon appeal to this court, the judgment of the Circuit Court was affirmed.

The judge who delivered the opinion of the court, says: “But the bill of indictment does not alledge, that an issue or question of competency and qualification, as to the jurors called generally, or as to the particular juror offered, was submitted by the parties, or by either party to the court. There is no allegation, that the oath was administered by the court, because of any challenge or objection by the State, or the prisoner on trial, to the competency of the juror. We think that the indictment should show, that an issue, or question of competency and qualification generally, or of the juror in particular, who was sworn on his voir dire, was submitted by the parties to the court.”

Now, it can scarcely be necessary for us to observe, that the principles of this decision, as applicable to such cases, will not us, be enlarged by analogy or construction.

Let us see whether the bill of indictment sought to be sus-tainecl in the case, now under consideration, has escaped from the defects of that in The State vs. Wall.

What are the allegations in the present indictment? There is an attempt to meet the two categories of the opinion in the case of The State vs. Wall.

1st. That the indictment should show, that an issue or question of competency and qualification of the jury generally: or,

2d. Of the juror in particular, who was sworn on his voir dire, was submitted by the parties to the court.

The present bill of indictment shows no such thing. It charges, that the question as to competency and qualification of the jurors summoned, was submitted to the court, and was determined by the court, but does not state how it was submitted. It further charges, that the prisoner, W. Moffatt, being duly summoned as a juror, was then and there presented and offered as a juror, when it became a material question before the court, as to the competency of Moffatt as a juror, whether he had formed or expressed an opinion as to the guilt or innocence of the prisoner he was summoned to try; and upon his oath taken, said lie had not, upon which he was accepted as a juror, and concludes by the averment, that at the time he was so summoned and examined, he well knew, that he had both formed and expressed an opinion contrary to his oath.

This is the substance of the bill of indictment fairly extracted. Well, does it meet What is required in the case of The State vs. Wall? By no manner of means.

That case shows, that it became necessary and material to ascertain whether the juror had formed or expressed an opinion, as to the guilt or innocence of the person he was called to try. But the court said, that was not sufficient; but that the indictment should show, that an issue or question of competency or qualification, had been submitted by the parties to the court.

Now, if there be no such question submitted, the court has no right to try it. And yet it may be very important and material to the correct trial of the case. But not having been submitted by the parties, it is not an issue before the court, and no peijury can be committed in connection with it.

But furthermore, there is no'direct averment that the factum of the jurors not having formed and expressed an opinion, was untrue, but a mere allegation, that he well knew, that he had formed and expressed an opinion. This, we think, is not good.

The indictment, in the case of The State vs. Wall, is more perfect in this particular; it charges, that the juror swore that hé had not formed or expressed an opinion as to the guilt or innocence of the prisoner, when in fact he had both formed and expressed an opinion, and that he swore falsely in that respect.

In order not to be misunderstood, we say, further, that when we assert, “that the indictment should show, that an issue or question of competency and qualification, either of the jury generally, or of the juror in particular, who was sworn on his voir dire, was submitted by the parties to the court,” we mean, that the objection must be either expressly or tacitly to the whole of the jurors presented, whereby they are examined individually without special objection in every instance; or that a particular juror who is examined, must be so examined upon special objection to him individually, either on the part of the State or prisoner.

For these reasons the judgment of the Circuit Court will be affirmed.  