
    The State against Matthew O’Driscoll. The State against The Same.
    
      Charleston District,
    
    
      1798.
    
    "Where a grand juror, who finrfs a bill of indictment at one court,is drawn to' serve as a petit juror at the next succeeding court, and defendant will not challenge or except to him before he is sworn on a trial, it is too late to move for a new trial on that account, after a trial and conviction on the
    ^MISDEMEANOR in sending a challenge to Colonel Fishburn.
    
    I MISDEMEANOR for a libel in posting him for not accepting of the challenge.
    Motion for a new trial in each of the above cases.
    The defendant had been convicted on both of the above indictments, at the instance of the prosecutor, who did not conceive himself in honour bound to accept of the challenge, for reasons which were very satisfactory to the court and jury, before whom the cases were tried.
    The ground of the motion in both cases was, that a Mr, Knight, who had been drawn as a talesman, and who had taken his seat as a juryman on the trial, had at a former court served as a grand juryman* and was one who found the bill against the defendant.
    In support of these motions, the same grounds were taken which had been urged in Quarrel’s case, that on every criminal trial and conviction, there should be twenty-four good and lawful men ; twelve at least to find the bill, and twelve more to try the case ; but that there were only eleven good and lawful men sworn upon the trial of these misdemeanors, which convictions were not agreeable to the rules of the common law, inasmuch as a juror who found the bill was incompetent to sit and try the issue ; for, it was urged, that if any one of the twelve who found the bill might sit upon the trial, the whole twelve might; and so it might happen, that a man might be held to answer in a criminal court of justice in the first instance, and tried by the same men afterwards, which would be inconsistent with the common law principles of criminal justice, as a man in that case would be tried by his accusers, it being a well known maxim that the finding of the grand jury amounts to no more in law than to a legal accusation.
    To this it was replied, that the decision in Quarrel’s case was an answer to the objections in the present cases, because the defendant here had a good cause of challenge in his hand, and after reading the names of the grand jurors in the bill of indictment, if he did not make the objection, it was his own fault; it was too late after trial and conviction. It was compared to a motion for a new trial, on the ground of discovering evidence after a trial, which, by due diligence might have been produced at the trial; in which case it was urged the court never would grant a new trial, or suffer a man to take advantage of his own negligence, or make that a ground for another trial.
   The Court

was against the new trials in these cases. They said the principles laid down in the Georgetoxvn case, and §*uarreVs, had settled these ; there was no substantial difference between them. In the two former cases, the jurors were aliens ; which formed a good cause of challenge in each case ; but as the challenges were not made before trial, they held it too late afterwards. So in the present case, the sitting on the grand jury which found the bill was a good ground of challenge in these cases ; but as the de_ fendant sat by, with the indictment before him, and suffered the cases to proceed, and go to the jury without making any objection to Mr. Knight, when the law put it in his power -and afforded him the opportunity, it is too late for him now to take advantage of it. They admitted, that the rules of common law were not lightly to be overlooked, but that diligence was the life of the law, vigilantly non dormienti, jura subveniunt, and when a man himself waived a privilege which he could not take advantage of, it was not for the courts of justice to aid such negligence, by giving him another opportunity of availing himself of it.

The rules for new trials were discharged. The court then proceeded to sentence the defendant to two months’ imprisonment, and to pay a fine of SQL sterling, and to give’ security for his good behaviour, and particularly towards the prosecutor, for the space of two years.

Present, Bukke, Grimke, Waties and Bay.  