
    Ewing Dew v. Sophia M. McDivitt.
    1. On the trial of the validity of a challenge alleged against a juror, other than a principal cause of challenge, a sound discretion is allowed to the court.
    2. If a juror has formed or expressed an opinion in relation to a portion of the facts embraced in the issue, but not upon the whole issue, and, otherwise, stands indifferent between the parties, the allowance or refusal of the challenge is within the discretion of the court.
    
      Motion for leave to file a petition in error to the District ■Court of Athens county.
    Sophia M. McDivitt brought the original action in the ■Court of Common Pleas of Athens county, against the plaintiff in error, on the 4th clay of October, 1873, to recover damages, under section 7 of the act of May 1, 1854, entitled “an act to prevent the evils resulting from the sale of intoxicating liquor in the State of Ohio,” as amended April 18,1870, for injuries to her means of support in con■sequence of the intoxication of her husband, Samuel S. Mc-Divitt, a person in the habit of getting intoxicated, caused 'by the defendant unlawfully selling to him intoxicating liquor on the 18th of June, 1873, and at sundry and divers times between that date and the commencement of the •suit.
    The defendant, by his answer, among other things, joined issue by denying that he had caused the plaintiff’s husband to become intoxicated by unlawfully selling to him intoxicating liquor, and that the plaintiff had been injured in her rrieaus of support by reason of any sale of liquor to her husband by him.
    On impaneling a jury to try the cause, the regular jury was called, whereupon it was made to appear to the court that, ■during the term, a certain cause had been tried by the regular jury wherein the said Sophia M. McDivitt was plaintiff, and Hickman & Hickman were defendants, in which action the regular juiy had returned a verdict in favor of the plaintiff* for injuries to her means of support caused by the unlawful sale of intoxicating liquors by said defendants, which produced the intoxication of the plaintiff’s said husband, between the 21st of September, 1872, and the 27th of September, 1873. Whereupon the defendants challenged each and all of said jurors for the cause aforesaid, which challenge the court overruled, and defendant excepted.
    Thereupon several of said jurors, being sworn, stated- in substance that while sitting as jurors in Hickman’s case, they had formed and expressed the opinion, that from the 18th of June, to the 27th of September, 1873, the plaintiff was dependent upon her husband for her means of support;that during said period the plaintiff’s husband had been in the habit of getting intoxicated, and that his intoxication had impaired the plaintiff’s means of support. (It also appeared that said jurors had formed and expressed the opinion that said Samuel McDivitt and the plaintiff' were husband and wife, as averred in the plaintiff’s petition, which fact, however, was not denied in the answer.) The defendant then challenged, each of the jurors who had formed and expressed an opinion, as above stated; but the court, having interrogated each of said jurors, who answered that the opinion so formed and expressed would not interfere-with their rendering an impartial verdict, on the issue joined, upon the testimony which might be introduced in-the case, overruled the challenges respectively, to all of which defendant excepted.
    The jurors so challenged were sworn and sat in the trial of the cause and returned a verdict in favor of the plaintiff..
    A motion for a new trial was overruled aud judgment rendered on the verdict. This judgment was afterward affirmed by the district court.
    
      Grosvenor $ Dana, and Desteigner § Jewett, for the motion.
    
      W. -R. Golden, contra.
   McIlvaine, J.

The act relating to juries, passed April-26, 1873, including original section 11, was in force at the date of the trial below. It is not contended that a cause for a principal challenge, under section 11 of said-act, existed. The ground of challenge, if any existed, was for favor, under the following clause of the section : “ And any petit juror, who shall be returned for the trial of any cause, and against whom no principal cause of challenge-can be alleged, may nevertheless be challenged on suspicion of prejudice against, or partiality for, either party, or for want of a competent knowlege of the English language,., or any other cause that may render him, at the time, an, unsuitable juror, and tbe validity of such challenges shall be determined by the court.”

It appears to us that the jurors challenged in this case were shown to be indifferent between the parties, unless, upon the facts disclosed in the record, there was a suspicion of prejudice against the defendant. If, in a legal sense, a suspicion of prejudice against the defendant was shown to exist, the court erred in refusing the challenges. A “prejudice,” which disqualifies a juror is usually sought for by the question, Have you formed or expressed an opinion in this case? The fact, which the question is intended to elicit, is whether or not, uj on the issue joined, the juror •has formed or expressed an' opinion. It is not enough that some matter relating to the issue, and necessarily involved in it, may be prejudged by an opinion either formed ■or expressed, unless the court trying the validity of the ■challenge should find that the opinion is such as would disable tbe juror from delivering an impartial verdict upon the evidence in the case.

As an illustration of this point, I put the case of trespass quare clausum fregit. The plea is “notguilty.” Possession is an essential fact in the plaintiff’s cause. Surely a juror, who had actual knowledge of the possession, would not be disqualified. Again, an illustration might be drawn from the practice in criminal cases, where the discretion of the trier of the validity of a challenge for favor is not •so large. Thus, in a trial for murder, upon a plea of not guilty, a juror would not necessarily be disqualified, although he had personal knowledge of the death of the person alleged to have been killed, and that the killing was murderous.

Notwithstanding, however, that great latitude of discretion must be allowed to the court in the trial of a challenge for favor, as there was at common law to the triers appointed for that purpose, undoubtedly there is a limit beyond which sound discretion may not go; as, for instance, where it is shown that the juror has formed or expressed ;an opinion upon the merits of the whole issue, and the prejudice thus alleged is not clearly rebutted. The general rule, however, is that the decision of the trial court on all ■challenges, other than principal challenges, and among the former is an alleged suspicion of prejudice,” is final and conclusive.

I think it is a great mistake to suppose that our statute was intended to enlarge or extend the causes of challenges for favor, or to narrow the discretion of the trier of their validity; and it is quite certain that the views above expressed are as liberal, in favor of challenges, as were the Tules and decisions at common law.

Ever since the trial of Charles Cranbourne for high trea•son, in 1696, the rule at common law has been, that it is no ground of challenge, that one of the panel, has been on a former jury, which convicted others upon the same indictment; because, as Mr. Chitty has said (1 Chitty on Criminal Law, 543,) “ every man must be tried on the evidence of his own guilt, without reference to that of his associates.” In Cranbourne’s case a juror was challenged because he was on a former jury which had convicted a prisoner jointly indicted with the defendant, and it was held to be no ground of challenge for cause. 13 State Trials, 222.

The same rule is laid down in Hawkins.

Algier v. The Steamer Maria, 14 Cal. 167, was an action for damages against the defendant for negligence, by which sparks escaped from the chimney of the steamer while navigating Feather River, and burned up a mile of plaintiff’s fence along the river bank. Among the jurors called were some who had just passed upon a similar case, between other plaintiffs and the same defendant, for burning grain by the same negligent act. The jurors being examined separately, were asked whether they had formed or expressed an opinion. Several answered they had, if the facts were the same as proven on the former trial; but, on being interrogated by the court, they answered that they had formed their opinion on the other case. The challenge of the defendant for cause was not allowed. This ruling of the trial court was approved by the supreme court.

In The Commonwealth v. Hill, 4 Allen, 591, the defendant was indicted for maintaining a nuisance from the 18th of May, 1860, to the time of finding the indictment. The defendant had just been convicted under another indictment for keeping and maintaining the same building (described in the indictment), as a nuisance down to the second Monday of May, 1860. A juror who had sat on the former trial was challenged for oause. The challenge was overruled, and the defendant, having been convicted, alleged exceptions. The exceptions were overruled by the Supreme Court of Massachusetts.

■ Without, therefore, approving or disapproving the manner in which the court below exercised its discretion in overruling the challenges, we are unanimously of opinion that there was no error for which the judgment can be reversed. ' Motion overruled.  