
    Gillespie and Others vs. The State.
    T . * It is no ground for a new trial in a criminal case, that one of the jurors trying the issue was one of the grand jury who found the bill of indictment. The objection to the juror must be made by challenge before he is sworn, or it is waived.
    The plaintiffs in error were indicted for a riot, and found guilty. Two of the men who had been or the grand ■jury and found the bill of indictment, were empannelled on the traverse jury, and on the trial of the issue of not guilty, the plaintiffs in error were convicted. The plaintiffs in-error moved for a new trial, founded upon affidavits, in which they swear they did not know the fact, that the two men on the jury were of the grand jury, until after the jury had received their charge from the court: The motion for a new trial was overruled, and an appeal in the nature of a writ of error prosecuted to this court.
    
      Hop. L. Turney, for the plaintiffs in error.
    The jurors, in this case, were-incompetent; they were rendered so by having once in the capacity of grand jurors passed upon the case. This is not a mere legal objection to the qualification of the jurors, such as infancy, &c. In such case, the mind is left to act impartially upon the evidence in the cause; very different is this case. Here the objection is owing to the act and conduct of the jurors. Suppose a juror highly excited against the prisoner, and resolved to convict him right or wrong was to procure himself to be summoned, and by his concealment of his purpose to procure himself to he taken on the jury, and then to convict him. Would this, in the language of the constitution, be a speedy, public, andan impartial trial by jury?, of would not the court grant a new trial upon the disclosure of the facts? In this case the record shows that they were members of the grand -iury, and the affidavit shows the defendants were ? c i f . ignorant of the fact.
    
      John D. JW Cormack, attorney general for the State.
   Catron, Ch. J.

delivered the opinion of the court.

Was the new trial properly refused? Nothing has been •better settled for centuries in England, than that after a juror is once sworn, he cannot be challenged for any pre-existing cause. 1 Inst. 158: 3 Vin. Ab. 11, 764: Yelverton’s Rep. 24: 1 Yerg. Rep. 219: No higher authority of what the criminal law, and its practice is, can be referred to than Hawkin’s Pleas of the Crown, .who lays down the rule to be, “That no jprpr can he challenged, either by the king or the prisoner, without .consent, after he has been sworn, unless it be for some cause which happened since he was sworn. 2 Hawk. P. C. 43. Nor is want of knowledge an exception to the .general rule. The King vs. Watson, Yelverton’s Rep. 24: M’Clure vs. The State, 1 Yerg. Rep. 219: furthermore; by the common law, an indictor was a competent traverse juror, to alter which it was enacted by the 25 Eliz. ch. 3, “That no indictor shall be put on inquests upon deliverance of the indictors of felony or trespass, if he be challenged for the same cause by him who is indicted. 3 Bac. Ab. 757, Jury 5. If the juror be not challenged, he is competent to try the issue; por can it be permitted to let the defendant annul the verdict against him, on his affidavit of want of knowledge: affidavits always to be had in cases of convicted felons, and which are - not subject to be disproved. But in this case the record evidence in the cause, shows who the grand-jurors that found the indictment were, and the defendants cannot be heard to say they neglected to inform themselves personally or by counsel of the fact: the Jaw fixes them with knowledge.

To hold otherwise than as above would sap the foun- , . _ . .... . ...... clations of the-trial by jury: a party m a" civil or criminal cause, (the rule being the same in each,) could elect one or more jurors whom he had the right to challenge, because, for instance, the juror had formed and expressed an opinion against him, and make an experiment: on the failure of which, make an affidavit, showing the fact of incompetency, and stating the want of knowledge until it was too late to challenge the juror, when a new trial will .be granted of course. Such a contrivance could be practiced in most criminal trials of the higher grades, where the triors generally of the county having jurisdiction, had formed and expressed opinions on the merits of the cause, and when so many jurors are presented who are not householders, or open to challenge for other reasons. 'The judgment will be affirmed.

Judgment affirmed.  