
    6915
    STATE v. FOSTER.
    Appeal — New Trial — Juror. — Appeal suspended and leave granted to make motion below for new trial, on- ground that since trial one juror is alleged not to have been indifferent.
    Motion -in State against Will Foster to suspend appeal, with leave to move the Circuit Court for new trial on after-discovered evidence tending to show a juror sat in case with determination to convict.
    
      
      Messrs. H. T. Rogers and Sam I. Nicholls for the-motion.
    
      Solicitor T. S. Sease, contra.
    May 21, 1908.
   PER Curiam.

The counsel for appellant have moved to suspend the appeal with leave to move in the Circuit Court for a new trial, on the ground that one of the jurors, Jesse Mahaffey, was not indifferent, but, on the contrary, had determined to convict the defendant before the trial commenced. In support of the motion, the defendant’s counsel have presented affidavits of persons who-swear that Mahaffey, after the trial, declared to them his intention, formed before any evidence was offered, to convict the defendant without respect to the testimony. The Solicitor submitted an 'affidavit of Mahaffey, in which 'he denies that he had made up his mind to convict before hearing the evidence, and says any remarks made about his conduct as a juror in the case were not serious, but made in the course of jocular conversation:

The issue to the defendant is life or death. The charge made under oath against the juror is a most serious one, affecting not only the life of the defendant, but the integrity of the jury box.

We express no opinion as to the issue of fact, but it is of such quality as to merit investigation by the Circuit Court. The motion is granted.  