
    Charles Williams v. The State of Mississippi.
    1. Jury : effect of juror beixg over sixty years of ase. — A person over the age of sixty years is incompetent to act as a juror, and for that cause may he challenged by either party; but if he sit without objection, the verdict will not for that cause be vitiated. See 2 Bay. 150 ; 4 Dali. 353; 2 Nott & McCord, 261.
    Error to the Circuit Court of De Soto county. Hon. John F. Cushman, judge.
    
      Watson, Craft & Fort, for plaintiff in error.
    It is submitted that Yarbrough was an incompetent juror, Rev. Code, p. 497, Art. 126, and the verdict therefore was rendered by but eleven, which is erroneous. Carpenter v. State, 4 How. 163 ; Bone v. McGinley, 7 How. 671.
    In the case of Seal v. The State, 13 S. & M. 286, the alienage of a juror was conceded to have been error, which would have reversed the judgment, had it appeared that the defendant was not aware of this want of qualification of a juror at the time he was sworn. In the present case, it does appear that neither the defendant nor bis counsel knew that one of the jury was over sixty years of age, until after the verdict was rendered. It also appeared that the court, district attorney, defendant, and his counsel all desired a legal jury, but by mistake fell into an error on the subject. The proper inquiry was made, and the juror was turned over to the defendant as competent; that all this transpired, is the necessary inference from the affidavits before the court in support of the motion for a new trial.
    Article 250 of the Code, p. 613, which declares that all of the laws of the State, not otherwise providing, having relation to the mode of selecting, drawing, summoning and impanelling all juries are directory merely, does not touch the question of the competency of a juror. This is manifest from the language employed in the article, and from the latter clause of it, which in substance declares that informality and irregularity in the mode of selecting, drawing, summoning or impanelling juries shall not render them illegal. Nor does Art. 7, p. 573 (of the Code), reach the present case.. It is questionable whether the terms defect or omission, or defect either of form or substance, embraces a case in which but eleven legal jurors were sworn. Be that as it may, the defect now complained of was unknown to the court, district attorney, defendant and his counsel, until after the verdict was rendered, and therefore could not have been taken advantage of before verdict. The error was in the court in misunderstanding the answer of the juror, and the defendant therefore was guilty of no default in not raising the objection to the juror before verdict rendered.
    
      P. T. Scruggs, on same side.
    
      T. J. Wharton, attorney-general, for the State.
    The objection to the age of the juror, made on motion for new trial, came too late.
    Code, 572, Art. 7, provides, that “no verdict or judgment shall be arrested, reversed, or annulled, after the same is rendered, for any defect or omission in any jury, either grand or petit; or for any other defect, either of. form or substance, which might have been taken advantage of before verdict, and which shall not have been so taken advantage of.”
    
      See also Code, 613, Art. 250. The affidavit of the juror was read on said motion. He states, that when asked, before the trial, if he was over sixty years old, he stated, in the presence of the defendant and his attorneys, that he was.
    The silence of the defendant was a waiver of any objection. So if the fact appealed, before the juror was accepted, that he was over sixty years old, it was waived by defendant; if it did not, it was the laches of the defendant not to have developed it, as he might have done, by examination on voire dire. In either case, he is estopped by the above article of the Code from raising the question, as in the court below, for a.new trial.
    That which is cause for challenge, is not always cause for a new trial; for example, that one of the jurors was an alien: 2 Bay. 150; 4 Dallas R. 853; or was on the grand jury which found the bill, as in 2 Bay. 153; see also 2 Black, 114; or was the relation of a party, as in 17 J. R. 133; or because some of the jurors did not pay taxes, as required by law to constitute them legal jurors, as in 2 Nott & McCord, 261; or because he was an atheist, as in 1 Yerg. 206.
   Handy, J.,

delivered the opinion of the court.

The plaintiff in error, having been indicted and convicted for manslaughter, moved for a new trial, on the ground that one of the jurors who sat on the trial, was above the age of sixty years, and disqualified to sit, in virtue of the statute, Rev. Code, 497, Art. 126. It appeared, on the hearing of the motion, by the affidavit of the juror, that he was above the age of sixty years at the time of the trial, and that he so stated to the court upon his preliminary examination, and that his statement was probably misunderstood. It was also shown by the affidavits of the accused and of his counsel, that although the statement of the juror, in regard to his age, was made in their presence, yet that they were ignorant of the fact until after the verdict was rendered. The motion for a new trial was overruled, and the case is brought here by writ of error.

The only error assigned is, that the court below should have granted the motion for a new trial; and it is insisted, that the juror was under a legal disqualification from sitting on the jury by reason of his age, in virtue of the provisions of the statute above referred to; that hence the jury was not a legal one, and that the verdict was therefore illegal. . But:we do not agree with this view of the subject.

The statute, it is true, appears to prescribe the qualifications of jurors, and to exclude from the list of qualified jurors, persons of certain ages, among which, are those “ over the age of sixty years.” Such persons are clearly rendered incompetent by the statute; and upon the challenge of either party, and the fact being made to appear, the juror would he rejected, as a matter of course. But does the objection necessarily vitiate the verdict, and render it illegal and erroneous’; oris it not of .such a character as that it may be waived-by the .parties, so as to preclude them from taking advantage of. it after verdict ? ' Such appears to be the view taken of it by the courts in this country.

The statute entitles the accused, in capital cases, tq¡ a copy of the list of the special venire summoned to try him; the reason of which is, that he may he enabled to inquire into the characters and qualifications of the persons summoned to sit as jurors in his case. He is then allowed the right of peremptory challenge to a certain number, and the general and unrestricted right of challenge for cause. It thereby becomes his.duty to inquire into the qualifications of the persons tendered to him; and if he neglects to do so, it operates as a waiver of objections. If the result of a -trial, under such circumstances, were an acquittal, it could scarcely he said that’the- verdict was illegal and void, and that the case should be tried de novo ; but both parties, by their neglect to avail themselves of the.objection at the'proper time, would be held to have waived it. The sitting of such a juror being a matter to which the parties may give their consent, either expressly or tacitly, if they do so,-they are not to be heard to raise the objection after an experiment has been tried for. a. verdict in their favor, by a! jury to which they have consented. 2 Bay. 150; 4 Dall. 353; 2 Nott & McCord, 261.

Let.the judgment be affirmed.  