
    Fletcher vs. State.
    1. It is not erroneous to permit the Attorney General to enquire of a person presented as a juror in a case for counterfeiting, whether he has taken an oath to acquit all persons of counterfeiting. The person may, however, refuse to answer.
    2. The court has the power to discharge a juror from the jury box in a ease of felony after he has been sworn, on the ground of physical inability, without the express consent of the prisoner.
    3. An affidavit made by ajurorthathe did not yield his assent to the verdict which he gave in with his fellows, but was forced to agree thereto by the. taunts and threats of his fellow jurors, is not sufficient to authorize a new trial. The affidavit should state the facts.
    4. The principle settled in the case of Calhoun vs. State, 4 Humph, approved.
    James Fletcher was indicted in the circuit court of Jackson county, for the offence of passing counterfeited coin.— The indictment charged that Fletcher tendered and passed live pieces of counterfeited coin to James, a slave, the property of one Lewis B. Peterman. The defendant pleaded not guilty, and the case was submitted to a jury at the November term, 1845, Caruthers being the presiding Judge. In the procurement of the jury, when the pannel was called, the Attorney General for the State moved the court to have each person, as he was called up to try his qualification, questioned whether he had taken an oath to acquit any man (if placed on a jury) who should be charged with counterfeiting. The Judge refused to have this question propounded to each person, but permitted the Attorney General to propound the question to such as- he might think proper. Whilst selecting the jury, the question was propounded to four persons of the pannel, upon which, said persons were challenged by the defendant.
    The following entry was made in the course of the proceedings:
    “After a portion of the jury had been selected, William Ragland, after having been pronounced a competent juror, was accepted by the State and defendant, and directed to take his seat. Thereupon, the said juror stated that he had a sore knee, and that it would be painful to sit, and the court thereupon excused said Ragland from serving on said jury. The court proceeded with the selection of said jury, and before the number was procured, both the defendant and State had exhausted their full number of challenges.”
    The defendant was convicted, and on a motion for a new trial presented an affidavit of one of the jurors, in which it was stated:
    “That seven of the jurors were clearly of the opinion that defendant should be acquitted, and four were for convicting him, and urged the necessity of the same until all the jurors, with the exception of this affiant, reluctantly consented to a verdict of guilty; and this affiant being clearly convinced of the innocence of said defendant, hung the jury, until compelled by the taunts and abuse of other jurors, he yielded unwillingly to the verdict pronounced against the defendant.”
    This motion was overruled, and the defendant sentenced to confinement in the penitentiary for the term of three years.
    
      Fite, for plaintiff in error.
    The affidavits of jurors who sat upon the case will be received upon the application for a new trial. Twelve concurring minds must assent to the verdict. — Crawford vs. State, 2nd Yerg. 60; Booby vs. State, 4th Yerg. 115.
    2. The question propounded by the Attorney General to four of the panel presented, out of which a jury was to be selected, as to whether they had taken an oath to acquit all persons charged with counterfeiting, when they should happen on a jury, was improper and should not have been permitted. The effect of the proceeding was to give the State as many peremptory challenges as the defendant’s whole number, and leave the defendant none. Because, by propounding such a question, suspicion is thrown upon the individual. He feels that he is suspected of being a counterfeiter, and, though innocent, if a weak man, he may be alarmed into the rendition of a verdict of guilty against his own judgment, for fear that he may be suspected of counterfeiting if he does not convict. It would be unnecessary to reason upon the principles of human action, in order to show that such a course, if permitted, might and inevitably would frequently lead to conviction of innocent persons. When the State has made such a charge upon a juror, the defendant is bound to challenge him peremptorily, (if there is no cause,) or run the hazard of having ’ on his jury a man who knows that he stands in the light of a suspected man before the community, by the simple fact of the Attorney General having asked him a question that implies a charge upon him of being a counterfeiter. But, if the defendant, in order to avoid the difficulty of having a man upon the jury upon whom the Attorney General has cast suspicion, challenges him, it is in effect the challenge of the State and not the defendant. In this way the State gets every person peremptorily challenged whom the Attorney General may desire. And thus the defendant will be in fact and effect deprived of the right of peremptory challenge. Not only was the asking of this question calculated to disqualify the person to whom it is propounded, from being a fair and uninfluenced juryman, but the balance of the jury who hear it propounded, have thereby a motive thrown before them to convict, lest they maybe considered one of the band whom the Attorney General is, by this proceeding, permitted to declare, have sworn not to convict each other. To say that the asking the question by the Attorney General is calculated to prejudice the person against the State, because the State’s attorney asks the question, is taking too shallow a view of human nature. Though the person might think badly of the Attorney General for asking the question, yet the desire to preserve his own good name from the imputation, would be the controlling motive of his action.
    There is another view of this case that we think the court should look to, before they give this proceeding their sanction. By asking this question, the State gets before the jurymen who have been selected and the crowd from whom the balance are to be selected, the allegation by the Attorney General that there is in the community a band of counterfeiters, who have sworn to protect each other, and the jury are thus urged to find a verdict of guilty, upon slighter testimony, for the purpose of striking terror into this band, than they would be content with, if no such allegation had been made by the Attorney General. Suppose the jury were em-pannelled, would the Attorney General be permitted on the trial to make the charge before the jury that there was a band of counterfeiters who had sworn to protect each other? The effect of what he was permitted to do was precisely the same. Would the State be permitted to even prove before the jury the existence of such a band, if it could do so by witnesses, unless it first proved the connexion of the defendant with that band? A fortiori, will the State’s attorney not be permitted to bring such a fact before the jury by his own bare assertion of belief, unsupported by a single fact, and founded upon groundless suspicion, as in this case?
    Judge White, in delivering his opinion in the case of Garner vs. the State, 5 Yerg. 169, says, that “it is a settled principle of the trial by jury, that where peremptory challenges are admissible at all, they are admissible after a challenge for cause has been disallowed; and, for this reason, that the very challenge might create in the mind of the juror, so excepted to, a prejudice against the individual who made the objection;” and refers to 1 Chitty’s G. L. 545, &e.
    
      Now, the great principle deducible from these authorities, is, that nothing shall be done in the course of the selection of the jury, that is calculated to prevent a fair, unbiased, and impartial trial, We think we have shown most clearly that the asking the question by the Attorney General was likely, and would almost inevitably prevent the defendant from having such a trial. When the usual questions to try the competency of the juror have been asked, and he is found competent, if not liked by the State, he should be peremptorily challenged. It is for this peremptory challenges are- allowed. Suppose the Attorney General had well grounded suspicions that the persons to whom he asked the question had taken such an oath, is there any policy thát would require that such questions should be asked? Could it be expected that a person who was so infamous as to take such an oath, and would go upon the jury with the deliberate intention to commit a perjury, if necessary to acquit the accused, would do otherwise than deny having taken the oath, if asked the question? What, then, is the State to gain by the question? Nothing, except the illegal point of having raised, perhaps, an unfounded prejudice against the defendant in the minds of those who are to try him; and having forced, by the proceeding, upon the defendant the necessity of peremptorily challenging a man that otherwise he would have taken— and thus enabling the State to take from the defendant all his peremptory challenges.
    It was improper to permit jurors to be asked such a question, because it was asking them to disgrace themselves — it was asking them to admit that they were guilty of high crime. This was improper. — Vide 1st Chitty C. L. 448.
    If the Attorney General had any proof that these individuals belonged to a gang of counterfeiters, and was not acting upon bare suspicion, he should have brought the matter before the court and had them indicted; and such proof, if in existence, might also have been used to exclude them as jurors; but they could not have been questioned themselves on the subject of their guilt.
    3. The indictment charges that the counterfeit money was passed to a negro slave, the property of one Pelerman. This, we insist, is not a sufficient charge of passing counterfeit money. In the case of Hite vs. the State, 9 Yerger, 198, it is decided by this court, that, if the slave deliver the property of his master, which has been placed in his care, to a person who takes it with the fraudulent intent of converting it to his own use, he is guilty of theft: because the slave and all he has belongs to his master. The slave being himself property, is incapable of giving his assent.to the giving up of his master’s property in his possession. The slave is incapable of trading; his acts are a mere nullity. The court say, that “the possession of the slave is a naked charge unaccompanied with a trust, and he cannot part with it legally to another, except when in some peculiar cases he may have been made the agent of the master, which is not the case, here.”— Now, if the slave was not the agent of his master in the case of Hite, under the facts there stated, a fortiori, Peterman’s negro was not his agent in this case. For there is no averment in the indictment, nor proof in the record that Peter-man’s slave was in any way his agent. And as it is against the policy of the law for a slave to trade, and all he may have is his master’s, the presumption legitimately arises, that he was not the agent of his master in this case, and gave up the ninety cents, the property of his master, without authority. If the court, upon principles of policy, have decided that a slave is incapable of assenting to a giving up the possession of his master’s property, and that it is theft in the person who fraudulently receives it, some other consequence that may flow from the principle not anticipated, cannot authorize the court to violate a principle of law thus established.
    4. The discharge of the juror, Ragland, was improper.— He had been selected by the State and the defendant, and without the assent of the defendant was discharged. The effect of it was to deprive the prisoner of the full benefit of peremptory challenges. The bill of exceptions shows that the defendant exhausted his full number of challenges before the jury was completed. Now, if this juryman had been permitted to remain on the jury, perhaps the defendant would have been able to get a jury of his own selection before his challenges were exhausted. But, as it was, he had imposed on him jurymen not of his choice, because his challenges were exhausted. The act of 1817, ch. 99, does not apply to this case, as it provides for a case where a juryman becomes sick during the progress of the trial. By the common law, if, during the progress of the trial, it became necessary to break up the jury, the whole were discharged, and a new jury empannelled. So it would seem, upon principle, that one that had been selected by the defendant having been taken from him, would, in order to secure to defendant the full benefit of all his challenges, entitle him to the full number of challenges, as though no challenge had been made by the defendant.
    The discharge of a jury, unless in some one of the cases enumerated, as .a case of necessity, is a discharge of the prisoner. So, it would seem that the discharge of one juryman under the circumstances of this case would discharge the prisoner. —Mahala vs. State, 10 Yerg. 532; Ward vs. State, 1st Hum-phreys, 253.
    
      Attorney General, for the State.
   Reese, J.

delivered the opinion of the court.

This is an indictment in the circuit court of Jackson county, for passing counterfeit coin. We will premise, before noticing the errors assigned by the counsel of the plaintiff* in error, who was found guilty of the charge, that upon the facts shown in the record, we are satisfied with the verdict.

It is objected to the proceedings in the circuit court, that the Judge presiding at the trial, permitted the Attorney General to enquire of persons returned to serve upon the jury, when examined before the court touching their legal competency, whether they had ever taken a voluntary oath to favor counterfeiters, if at any time they might happen to be placed on the jury in the trial of persons charged with that offence.

It is argued, that such an enquiry is not so much- calculated to prejudice the minds of those interrogated against the party interrrogating, in this instance the State, as to place the jury selected in an attitude to fear the pressure of public sentiment against them, in the event they should acquit the prisoner.

The interrogatory certainly is unusual and extraordinary, and one which the persons interrogated, might well decline to answer.

But the condition of the community, at some period and in some places, may be so peculiar, that it might be dangerous to limit to a prescribed formula the interrogatories to be propounded, on either side, in this preliminary trial, as to the competence of jurors.

The combination might be the opposite of that imputed in this instance, and it might be important to a person to enquire into pledges and obligations of a contrary character. It will always be the business and duty of the presiding Judge to restrain, and-of that responsible officer of the Government, the Attorney General, to abstain from, a course of interrogation on such occasions useless and wanton.

W'e feel bound to presume that they did so on the present occasion, and that the course adopted was not uncalled for, and was taken for the fair and honest purpose of getting a jury, omni exceptione majores.

2. The indictment alleges, that the counterfeit coin was passed to a negro man, slave, as the property of L. B. It is objected, that it ought to have alleged it to have been passed to the master. That is the legal effect of the allegation, for the master is owner of all the slave receives, whether as his agent or not. But, we think it much better to charge according to the fact, as it actually took place, than merely according to the legal effect.

3. Before the panel was completed, one of the persons selected by the parties as a juror, was permitted to stand aside, on his own application, for physical inability to sit, without objection from either party, but also without the express consent of the prisoner. This the court has power to do, and it is no ground of error.

4. It is objected, that the record does not sufficiently show, that the indictment was found and returned into court, a true bill. We think the record does show this. The present case, upon this point, is like the case of Calhoun vs. State, 4 Humph.

5. A juror made oath, that he did not willingly give his assent to the verdict, but yielded to the majority from the influence of the taunts and abuse oí his fellows. This might have done, if the afflant had detailed to the court in what the “taunts” and “abuse” consisted. ■ The facts should have been shown, so that the court might judge of them. What the juror might have considered “taunt” and “abuse,” others might consider animated and vehement argument, or, at most, rude manners. In such case, we want a fact, and not an epithet.

As to the omission in the caption, after the words “Jackson circuit,” of the word “court,” without considering how far it would be material, we take it to be a mere clerical omission in the last transcript; for in the first record, importing equal verity, the word “court” is inserted.

The result, therefore, of our opinion, upon the errors assigned, is, that the judgment of the circuit court must be affirmed.  