
    *Samuel Martin v. The State of Ohio.
    On a trial for murder, where one of the panel summoned by the sheriff is excused on his own application, it is not error in the court to refuse to order the sheriff to summon another in his place, before exhausting the panel.
    The defendant is entitled to only twenty-three peremptory challenges.
    The attorney appointed by the court to assist tho prosecuting attorney need; not be sworn, nor give bond.
    
      "When a juror states that he is on principle opposed to capital punishment, and that his opinion will influence his decision against the law and the evidence, he may be challenged by the state for cause.
    This is a writ of error to the court of common pleas of Clermont -county.
    The plaintiff in error was indicted for murder in the first degree, elected to be tried in the court of common pleas, and being tried in that court, was convicted of murder in the second degree, at the October term, 1846. Pending the trial, the following bill of exceptions was taken :
    Be it remembered, that on Saturday, October 13, A. D. 1846, William Howard, Esq., prosecuting attorney for said county, in open court, moved the court to appoint an assistant prosecuting attorney in this case, which motion was then and there resisted by Shepherd F. Norris and John Jolliffe, counsel for the defendant ; and the court having heard the remarks of said Norris in opposition to said motion, and while the said Jolliffe was addressing an argument to the court, against the propriety and expediency of making such an appointment, and before he had concluded the same, the president judge (on behalf of the court) informed the said Jolliffe that they would hear no farther argument on ■that subject, and said court would not further hear the said Jolliffe in support of his said objection ; to which proceeding, at that time, the said defendant, by his counsel, excepted. And the said court, then and there, appointed *John W. Lowe, a counselor at law of this court, as such assistant prosecuting attorney, who accepted said appointment and appeared in said cause, in behalf of said State of Ohio, in all subsequent stages of said prosecution, and argued the same to the jury, without having, at any time, given any bond or taken any oath of office, as such assistant prosecuting attorney, or otherwise taken his oath of office when 'he was first admitted to the bar.
    After the panel of thirty-six jurors had been made up, and after twelve of said panel had been challenged by said defendant, and five of said panel had been accepted by said defendant, as jurors to try this case, one of the jurors of said panel, viz., George MeLefresh, Esq., asked the court to excuse him from said service on •accounfof ill-health, which the court then and there did. The «defendant, by his attorneys, then and there, in open court, immediately after the said discharge of the said juror, and before any other step or proceeding was had or taken in said case, moved the court to instruct the sheriff to call some other suitable person as juror, in the place and stead of said juror discharged as aforesaid, and to make up the full complement of said panel; but the court then and there overruled said motion, and did not- and would not permit any other person to be called as a juror in said ease, and none other was called at any time thereafter, and said panel, in fact, was not filled up at all; to which, at the time of said proceedings, the defendant, by his counsel, objected, and asked the court to note the point; and just as the jury were about to be sworn to try the issue, etc., the defendant, by his counsel, objected to the swearing of the same, and then and there informed the court, in open court, that the defendant excepted to the jury as illegal, and to their being sworn as aforesaid, because the panel of said jury contained thirty-five men only, to challenge from, and not thirty-six; but the court then and there directed the jury to be sworn, and they were then and there sworn. After the said defendant had peremptorily challenged twenty-three jurors of said panel, there remained one juror only, viz: P. Lewis; and defendant, by his said counsel, then and there, and before the jury were sworn to try, etc., claimed the right to challenge the said ¥m. P. Lewis as a juror, peremptorily; but the court overruled said challenge, and the said ¥m. P. Lewis was sworn as a juror, and sat as a juror in said ease.
    And also, that the jurors who were summoned on said array, together with such of the bystanders as were called in to supply the places of such as did not attend, were each asked by said John W. Lowe, Esq., whether he was conscientiously opposed to the infliction of capital punishment in cases of murder; and whether, if they had such scruples, would such scruples influence them to disregard the law, and the testimony of the case, which question was asked, as aforesaid, of each and every person who was called to the bar, to fill up said (alleged) array, and by two of them was answered in the affirmative, to wit, by John Wagoner and William Moretón; the said Wagoner stated that he was in sentiment opposed to the infliction of capital punishment, and that his opinion, he apprehended, would influence him against the law and evidence in the case he was challenged by the state, and for that cause set aside. Said Moreton answered, that he was also opposed to tho infliction of capital punishment in any case, and if sworn as a juror in such case, his said opinion would influence his decision against the law and evidence ; that he would prefer obeying the law of G-od to the laws of sinful man: for this cause he was also challenged and set aside. The defendant, by his counsel, objected to said interrogatory, but the court overruled said objection, and permitted said interrogatory to be put as aforesaid. After the jury' was sworn as aforesaid, the State of Ohio offered evidence which tended to prove that the deceased, at one time, had a certain linen purse tied with a wax-end, which was fastened to such purse ; and after the whole of the evidence on both sides of tho case was through, and while the counsel for the state was arguing said case to the^ jury, he declared that a certain string attached to said ^alleged purse was, in fact, a part of a wax-end, which fact was then and there denied by the opposite counsel, who also objected in open court, to any such statement or argument being made to the jury, upon the ground that there was no evidence whatever before the jury, by the testimony of any witness or witnesses, that the said string was-or was not, in fact, a part of a wax-end; but the court told the jury that they might decide, by inspection of said string, whether it was or was not a wax-end.
    To which opinion and proceedings the defendant, by his counsel, excepts, and prays that the bill of exceptions may be signed by the court, and ordered to be made a part of the record; all of which is now tendered accordingly.
    Upon tho bill’of exceptions, errors are assigned as follows:
    1. The defendant was not allowod thirty-six jurors from which to make his challenges.
    2. The court erred in overruling the challenge of Wm. P. Lewis.
    3. The court erred in permitting John W. Lowe to act as assistant counsel, without being sworn and giving bond.
    4. The court erred in permitting interrogatories to be propounded to the jurors, as stated in the bill of exceptions.
    5. The court should have heard the counsel of Martin in opposition to the appointment of Mr. Lowe as an assistant prosecuting attorney.
    6. The court erred in permitting the jury to decide, by evidence of inspection merely, whether the string said to be attached to the parse was a wax end or not.
    7. The general error.
    John Jolliefe, for plaintiff in error.
    William Howard, for the state.
   Birchard, C. J.

The first assignment of error presents this single question: Did the court err in not placing a bystander on the list of persons summoned, in the place of *George McLefresh, one of the original thirty-six, who was excused on account of ill-health, before exhausting the remainder of the thirty-six? This point is settled by section 12 of the act directing the mode of trial in criminal cases (Swan’s Stat. 726), which provides that the jurors summoned, or such of them as are not set aside on challenge, together with so many of the bystanders having the necessary qualifications, as will make up the number of twelve; or, if the whole array be set aside, twelve of such bystanders as may not be set aside on challenge, shall be a lawful jury for the trial of the prisoner. Under this section we think the court was not required to delay proceedings till the sheriff had named the bystander whom he should first call when the entire array should be exhausted. That it was lawful for the court to proceod and ascertain whether a jury of twelve could be made up from those duly summoned, without resorting to the bystanders, as is ordinarily done in filling a panel for the trial of a civil issue.

A different course has sometimes been practiced on trials for -capital offenses in this court, but not as a matter of right, nor where it would seriously impede the progress of business. But in all such cases the jurors have been called in regular order, beginning with the first on the list, and going through with the whole in regular order, and exhausting it before calling the name of a bystander. It is not error to pursue either course as convenience may require.

The second question made is, was there error in overruling the challenge of William P. Lewis? The plaintiff had challenged peremptorily twenty-three persons before he made this challenge; and upon what ground he could claim a right for a further peremptory challenge, we can not tell. The statute gives the right to challenge peremptorily twenty-three and no more.

The third cause assigned for error is that the attorney appointed to assist the prosecuting attorney in conducting the trial was not sworn, and not required to give bond. The statute requires nothing of the kind. The nature of the ^duties which were to be performed did not require it. And had the court yielded in this respect to the plaintiff in error, they would at least have done a very useless thing.

The fourth inquiry is, were the interrogations propounded to certain jurors, two of whom are challenged for cause by the state, proper ?

It can not be maintained that one is a suitable person to serve on any jury, who has imbibed such prejudices on any matter to be litigated on the trial, as would induce him to disregard the law and the facts governing the case. A trial before such persons can not be a fair trial. A man who would disregard his oath to save his conscience, is not fit to be trusted anywhere. One who has such strong prejudices, that he can not do what he knows to be right, when it conflicts with his peculiar theories, or whose mind is so obscured by his own peculiar notions, that he can, with a conscience void of offense, make the law of his country bend to his-own will and accommodate its provisions to his own visions of morality, ought never to be allowed to sit as a juror. If insane-on the particular subject to be inquired into, he is, as to that subject, no better than if altogether demented.

But was it right to question the juror upon his voir dire to-establish this cause of challenge? Nothing is more common than to allow any one to make use of the person offered as a juror to prove his own incompetency. In such cases leading and direct questions are always allowed to be propounded. The court are triers of the question of competency, and there is no danger in permitting such examination, because the court are to judge and pass upon the testimony after hearing it. The fact may as well be established by the person called as a juror as by the oaths of others. It is no reason why either party should be denied the privilege of using a person as a witness, that such person is expected to serve on the jury.

The next question is, should the court of common pleas have heard a further argument against the appointment of *John W. Lowe-to assist the prosecuting attorney in conducting the prosecution?

The bill of exceptions shows that the court of common pleas made the appointment while one of the plaintiff’s counsel was addressing an argument to them, against the “propriety and expediency of such appointment,” having previously informed him that they would hear no further argument on that subject. What the grounds were, upon which it was sought to prove this supposed impropriety or inexpediency—what doubt existed that could possibly be removed by argument, does not appear, and upon what fact it was sought to base an argument, we are not informed. The exception seems to have been taken under the impression that when a man is placed upon trial for the crime of murder, he can not be prosecuted unless the attorney who may be selected on behalf of the Btate to aid in conducting the proceedings, is one that is perfectly acceptable to him. We know of no-reason why the state has not the same right to enjoy its preference-in selecting counsel, that is exercised by every other suitor. Nor can we see how the plaintiff was prejudiced by the refusal to hear his counsel’s argument on a matter where he had no right to be-heard at all. The subject was one on which his counsel could not offer an argument, except as amicus curies, without a departure from the rules of propriety, and the respect duo from counsel te the court. It was very disrespectful to the court to persist in making an argument after the notice given by the president judge.

Again, it is alleged that the court erred in informing the jury that they might examine the string with which a certain linen purse was tied, and “ decide by inspection whether it was or not in fact a wax-end.” It would be strange indeed, if, when it becomes material to establish a fact of this nature, a rule should be adopted,, excluding the highest evidence of which the fact was susceptible, the evidence of one’s own senses. Yet as this bill of exceptions shows, the court were requested by the plaintiff’s counsel to enforce such a rule *upon the jury, and we are called upon to find that they erred in not complying, we are bound to believe the point has been seriously presented in both courts; and yet to yield to such objections, however, pertinaciously persisted in, would be trifling with justice. In the whole record, there is nothing which can be reached by the general assignment. Judgment affirmed.  