
    JACKSON:
    APRIL TERM, 1839,
    Ward vs. The State.
    It is too late to challenge any of the members of a jury in a criminal case propter defectum after they have been sworn to try the cause.
    Where the court permitted the attorney generalto challenge jurymen prop• ter defectum after they were sworn and charged-, and the prisoner put upon his deliverance, and they were set aside against the consent of the prisoner, and other jurymen substituted in their places, who convicted the prisoner: Held, that the prisoner was discharged.
    At the November term of the circuit court of M’Nairy county, in the year 1834, a bill was presented by Roger Barton, the attorney general of the fifteenth solicitoriaL district, to the grand jury, against Ferguson Ward, for the murder of Moore G. Wisdom, on the 30th day of August, 1834, in the aforesaid county, by stabbing. The grand jury returned this bill into open court endorsed a true bill. The defendant pleaded not guilty, and issue was joined thereupon. After several continuances it was tried at the June term, 1836, and a verdict returned that the prisoner was “guilty of murder in the first degree, in manner and form as charged in the bill of indictmenti” A motion was made to set aside this verdict, and argument having been heard thereupon, the honorable John Read, presiding, by intercharge with the honorable A. Miller, set aside the verdict and awarded anew trial to the defendant. The cause was subsequently continued from time to time till the February term, 1838. At this term, • an attempt being made to select a jury and such attempt proving unsuccessful, his honor Benjamin C. Totten, being of the opinion that a fair and impartial trial could not be had in the county of M’Nairy, with the assent of the prisoner, changed the venue to the county of Hardeman.
    At the July term, 1338, the cause came on for trial. The defendant, in the progress of the cause, filed his bill of exceptions in the following words, to wit:
    “Be it remembered, that heretofore, to wit, on the 20th July, 1838, Ferguson Ward was put upon his trial before the honorable John Reid, judge, &c. on a change of venue from the circuit court of M’Nairy county, on an indictment for the murder of Moore G. Wisdom, and after having been placed upon his trial he proceeded to elect and empannel a jury, and thereupon the following twelve men, to wit, Jacob Lowry, &c. &c., all freeholders, householders or occupant holders, and citizens of the county of Hardeman, were elected and empannelled to serve as jurors in said cause; and also having been selected and empannelled, were thereupon sworn upon the Holy Evangelists of Almighty God well and truly to try the issue joined and true deliverance make between the State of Tennessee and the said Ferguson Ward, defendant, and a true verdict to render according to evidence; and having been empannelled and sworn, as aforesaid, the said jury took their seats; whereupon the solicitor general on behalf of the State read to them the bill of indictment against said Ward, which having been done the witnesses on behalf of the State were called up and severally sworn and ordered by the court to be placed under the rule; at which period in the cause the counsel for the State suggested to the court that in cases where the venue was changed it was necessary and required by law that the jury should be composed of freeholders, and that in this case the question which had been asked of the jurors was, whether they were freeholders or householders of the'county of Har-deman, and that having answered in the affirmative, it was still doubtful whether or not they were all freeholders; he therefore moved the court that the jury be again called severally, and asked the question “if they were freeholders in the county of Hardeman,” and that those who answered in-the affirmative should still remain as jurors in the case, and that those who should answer “no,” should be withdrawn and set aside and others who were freeholders elected in their places; to which motion on the part of the State the defendant, by his counsel, objected, which objection was overruled, the defendant by his counsel thereto excepting, and the jury ordered to be again severally called and asked the question ‘‘if they were freeholders of the county of Hardeman;” whereupon, the question being asked, R. D. Casey and A. Poor answered and stated that they were freeholders of the county of Hardeman, and five of them, to wit, Jacob Lowry, &c. &c. answered and stated that they were not freeholders in the county of Hardeman, but they were the owners of occupant claims in said county, and the balance answered and stated that they were not freeholders but householders in the county, whereupon the court ordered Casey and Pool to be and remain as jurors in the case; to which order of the court, retaining said Casey and Pool, nothing was said on either side, and the balance of the jurors so selected were ordered to be withdrawn from the jury, and ten freeholders to be selected in their stead; to all of which orders of the court the defendant, by his counsel, excepted, and demanded a trial by the jury aforesaid, elected, empannelled and sworn as aforesaid.
    The defendant, by his counsel, then moved the court that those jurors who had answered that they were occupant holders should be allowed to remain upon the panel as jurors by him elected. This motion the court overruled; to which opinion of the court in overruling the motion the defendant, by his counsel, excepted; whereupon the aforesaid householders and occupant holders, to wit, &c. &c. were, by order of the court, withdrawn from the jury aforesaid, and by the court prohibited from acting as jurors in the said cause. The sheriff was then ordered by the court to return another panel composed of the freeholders, out of whom the defendant was ordered to elect and empannel ten other jurors to serve in the room and stead of those so by the court withdrawn a,nd set ¡p?ide as aforesaid.
    
      To all of which actings and doings on the part of the court -the defendant, by his counsel, objected and excepted at the time they severally occurred.
    The sheriff then returned another panel, on which were Robert Rankin and others, who being severally asked if they were freeholders, answered and stated that they were not but were occupant holders, whereupon the court ordered them to stand aside; to which order of the court the defendant excepted, and claimed the benefit of said jurors as part of the panel presented by the sheriff, which the court would not allow, but ordered them to stand aside without being put to said defendant as part of the panel, he being deprived of the right of selecting a jury from amongst them as part of the panel aforesaid. To all of which actings and doings the defendant excepted at the time they severally occurred. The above facts exhibit the only ground the court had for setting aside the jury aforesaid elected, empannelled and sworn as aforesaid in said cause. Whereupon under the order of the court aforesaid the defendant proceeded to select William Sanders and six others, freeholders, from the panel returned by the sheriff; and thereupon Charles Murphy was presented to the defendant as one of the panel, and the defendant having been informed that the number of peremptory challenges allowed him was out, and there existing no objection to the said Charles Murphy for which he could be challenged for cause, the said Murphy was ordered by the court to take his seat as a juror in the cause, and thereupon the following men, to wit, &c. &c. all freeholders, were declared to be elected and empannelled as jurors to try the issue of traverse joined between the State of Tennessee plaintiff and Ferguson Ward defendant; and thereupon they were each and severally sworn to try the issue, &c. and a true verdict to render according to the evidence, and ordered to take their seats in the box, to being tried by whom the defendant, by his counsel, objected, and the objection was overruled.
    To all of which actings and doings the defendant excepted and entered this his bill of exceptions to all and singular the matters and things therein contained, and prays that it may be signed, sealed and made á part of the record, which is done. John Read, Judge;” &c. &c.
    The trial of the cause proceeded, and bn the 23d of July, at the said term, the jury, under the charge of the court, returned their verdict that the defendant was not guilty of murder in the first degree, but was guilty of murder in the second degree, in manner and form as charged in the bill of indictment, and fixed the term of his imprisonment in the jail and penitentiary house at ten years. A motion was made by defendant’s counsel to set aside the verdict, which was overruled. ' A motion was also made to arrest the judgment and discharge the prisoner, which was also overruled and judgment rendered against the prisoner in conformity with the verdict.
    The defendant prayed and obtained .an appeal in the nature of a writ of error to the supreme court.
    
      Haskell, for the plaintiff in error.
    T. The first selected jury was a good jury and was set aside without any legal necessity. By the statute of 1809, ch. 119, sec. 2, it was enacted that all free persons of the age of twenty-one, being householders, are competent jurors in all cases whatsoever except upon change of venue. In 1827 (ch. 30) an act was passed contáining two sections; the first repealed all former laws upon the change of venue; which by itself clearly repealed the freehold qualification which existed in regard to jurors in such cases, and left the last act of 1809, ch. 119, sec. 2, to furnish the rule in the selection of jurymen. The second section of said act of 1827, under which this case was sent to Hardeman, provides, that upon the trial of criminal Causes, if the judge presiding, after an attempt to select á jury; thinks a fair and impartial trial cannot be there had, he may order a change of venue to some adjoining county, &c. if the prisoner assent thereto; <fcc. This section does not nor does any statute require any special qualification for jurymen in such a case; and it must be a strained, illegitimate and forced construction of these acts to require any such qualification. Hence, it is contended that all of the jury first selected were good and lawful men to try the prisoner, and ought not to have been set aside; but being sworn and then discharged, the prisoner stood acquitted, and all other proceedings against him were void. It is also contended that by the third section of the schedule to the constitution of our State occupant holders south and west of the Congressional line are made legal jurors in all cases.
    2. If any of the jurors taken were not qualified jurymen it was but cause of challenge propter defectum, and could have been made by the State or the prisoner, and must have been made before the jurors were sworn. 2 Com. Digest, 322, title Challenge Peremptory', letter C: 1 Chitty’s Crim. Law, 440, 441, 541: 4 Dallas’ Rep. 353, Holftngsworth vs. Duane: 2 Bay. 150: 7 Cranch, 290: 3 Bac. 750: Coke Litt. b, 155. The cases last cited show that the jurors taken were wholly disqualified to serve if objected to, some aliens, some infants, <fcc., who are no where allowed to serve on juries if challenged; and these cases and others clearly establish the rule that if such qualified jurors are taken and not objected to, or challenged before being sworn, they cannot be set aside except for matter subsequent to such swearing, and their verdicts, both in criminal and civil cases, are as binding and as valid as if they had possessed the proper, full, and in all respects, requisite qualifications. 8 Yerger, 508, Gillespie vs. The State: 1 Yerger, 219, M’Clure vs. The State: 1 Inst. 158: 3 Yin. Ab. 11, 764: 2 Hawkins’ P. C. 43: Yelverton’s Rep. 24, The King vs. Watson. These cases clearly show that if the unqualified jurors are not challenged before they are sworn, they are, by such swearing, made competent to try the issue, and that it makes no difference whether such want of qualification was known or unknown at the time the jurors were sworn; in either case the verdict must stand and judgment follow it.
    3. This brings me to my last proposition, that the swearing of the juiy in the first instance put the prisoner in jeopardy of life, from which I contend he was relieved by discharging that jurjq and that he could not again be put in jeopardy for the same offence. 10 Yerger, Mahala vs. The State: 18 Johnson, 187: Martin and Yerger, 299: 2 Johnson’s Cases, 305: Con. art. 1, sec. 10.
    
      
      Attorney General, for the State,
    furnished no brief of which reporter could avail himself.
    
      M. Brown, for plaintiff in error, in reply.
   Turley, J.

delivered the opinion of the court.

We do not consider it necessary to enter into a minute investigation of the several propositions presented for consideration in this case, because we are unable to distinguish it in principle from the case of Mahala vs. The State, reported in 10 Yerger, where the question of the power of the courts to discharge a jury in criminal cases has been fully investigated. It is true, in that case the jury was discharged by the court after the testimony had been heard because they said they would not agree upon a verdict, and in the present it was discharged after the bill of indictment had been read because the court thought it was not composed of men who were omni ezceptioni majores; but still we think that the same rules of law which prohibited it in the first case also prohibits it in the last. We deem it unnecessary to en-quire whether the jurors who composed the jury in the present case were good and lawful men under our statutory provisions or not, because, if there were objections to them they were of that kind which are to be classed under the cause of challenge propter defectum, and it is well settled, both by the authorities of the courts of Great Britain and of the State of Tennessee, that it is too late after a jury has been sworn to challenge any of its members propter defectum, to be now a debateable point. But in the present case the court permitted the attorney general, not only after the jury had been sworn but after the prisoner had been put upon his deliverance, to challenge ten of the jurors propter defectum, and set them aside against the prisoner’s consent, and compelled him to select ten others, who, in conjunction with the remaining two, returned the verdict upon which the judgment sought to be reversed was pronounced. That this was an illegal act cannot be controverted; it was error, and such error as cannot be corrected by reversing and remanding the cause for further proceedings, because it will be impossible eve;' to. place the prisoner in the same position he occupied when his was, thus illegally broken up. The only remedy is to discharge him. It is argued for the State that a court may discharge a jury whe.n it is for the benefit of the prisoner that it should be done or is matter of indifference to him. There is no case to be found where a jury has been discharged in either of the specified cases without the consent of the prisoner. In the case of the Kinlocks, reported in Foster, the jury was discharged by the court, with the consent of the prisoners, to enable them to make a defence which they otherwise could not have done; and it afterwards became matter of very great debate whether this was not an illegal proceeding, and after elaborate argument the court decided that it was not because the prisoners had consented thereto. It is also argued that all the authorities are that a jury cannot be discharged after they have been sworn and charged, which, it is contended, means after they have been sworn and the testimony or a part of it been heard by them. By the word “charged’’ we think is meant after the prisoner has been placed in the hands of the jury for trial; this by the practice in England was always formally done immediately after the jury were sworn, and before the bill of indictment was read and any of the testimpny he.ard; it means, therefore, charged with the fate of the prisoner and not with the testimony or law of the case as is argued. In this case then a jury select-, ed by the prisoner has been discharged by the court contrary to law, after they were sworn and charged, and against his consent, and he has been forced to trial before a jury not of his choice, who have convicted him of the offence with which he stands .charged. To sustain the. judgment under such circumstances would be to endanger the right of trial by jury and to violate principles well settled by authority in Eur rope and the United States. This we cannot do. The judgment of the circuit court must therefore be reversed and the prisoner discharged.  