
    The State against Joseph Quarrel.
    
      Charleston District,
    
    
      1798.
    
    7f an alien ir» rirau'n and 5m-p«n<*ilcd as a ¿mi*h\ H is a p'Od canso of challenge before trial ; bnt if permitted to lx.* sworn by the prison- €*'•, it is too laic, after trial and conviction, to make it a ground for a new trial.
    MURDER. Motion for new trial.
    The prisoner had been convicted, on very clear testimony, in the court of general sessions of the peace, &c. of the murder of one —-, by stabbing with a shoemaker’s knife ; and a motion was now made for a new trial, on the ground that John Love, who sat on the petit jury who tried him, was an alien Englishman. Mr. Love had lived many years in Charleston, and was a tradesman in repute, who had paid his taxes, and done militia duty regularly as a citizen ; but - it appeared he had never taken the oaths of allegiance and fidelity to the United States, but neither the prisoner nor his counsel knew of it at the time of his trial. On behalf of the prisoner it was urged, that what was good cause of challenge before trial, was good cause for a motion in arrest of judgment, or for a new trial, afterwards. That Love being a foreigner, was a very good ground of challenge, had the prisoner known of it; but being ignorant of that circumstance, he permitted him to be sworn as a juryman.
    The common law requires that twelve men at least shall find a bill against a man, and twelve more must find him guilty, before his life can be put in jeopardy. These jurors should be omni exceptione majores ; not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum. They should be ¿iberos et legales, et legales homines de viceneto.
    
    In the present case, however, it was said, there were not twelve good and lawful men who passed on his trial, only eleven ; so that this was not a conviction according to the common law of the land.
    The Attorney-General., in reply.
    This is rather an objection of a formal, than of a substantial nature. That new trials were very often discretionary in the court, and unless they were convinced that justice hacl not been done, they would not grant a new trial. That the present objection was in nature of a challenge to a juror, which might have been good before trial, but now too late after trial. That it is laid down in a great number of cases, that a juror cannot be challenged after he is sworn, unless it be for some cause after he is sworn. 2 Jrlazvh. 412. 4 Black, 346. That this point had been determined in a case tried at Georgetoum, and afterwards taken up to the court of appeals at Columbia, where an alien sat upon the trial, which was unknown to the defendant at the time of trial. This was made the ground of a motion for a new trial; but the judges, after argument, refused it, as it was too late after trial to take exception to a juror, which might have been excepted to at the time of trial. That it was almost impossible for the sheriff of any district, unless he was to turn inquisitor, to tell the difference between an English alien and a citizen ; the manners, language and cast of features were the same. Aliens are obliged to serve in the militia after a residence of six months, and they pay taxes, and all the jury lists in the state are made out from the returns of the tax-collectors. No blame or censure, therefore, could attach to the officers' of the-court, for returning an alien on a panel, as they were put into and drawn out of a jury box in the same manner as citizens, the law having made no provision to distinguish them. And indeed there does not exist the same reason for challenging them, as there does for challenging other foreigners, for the laws of both countries are exactly the same, so that the objection is more in name and in idea than in reason or justice. And for the same reason it is clear law, that if an alien is to be tried, and a common jury is summoned, and he does not object before trial, he shall not be allowed it afterwards. 2 Hawk. 420. But if he allege that he is an alien, a venire de medietate linguce shall issue. That by the 43d clause of the jury law, passed in 1731, every prisoner in this state is entitled to a copy of the indictment found against him, with a copy of the panel of the jury, three fullda''s before the trial, that he may know the jurors who are to pass upon his trial, as well as the names of those who found the bill against him. This privilege is allowed infavorum vitm, and in order that every prisoner, whose life is in jeopardy, may have a fair opportunity of taking every exception which the law allows in his favour. And if he will not avail himself of these privileges and advantages before trial, it is his own fault; he cannot do so afterwards. It wmlci, indeed, be trifling with the justice of the country, if, after all the solemnities of law, and trouble of examining witn; sses, and the pains taken to come at the substantial justice of the case, such an exception as the present one was allowed to set afloat all the proceedings attending the pri- . soner’s conviction.
    
      Pub. Laws, p. ISO.
   The Judges,

after hearing the arguments, did not think themselves justifiable in ordering a new trial- as v was too late after verdict. That the prisoner was reminded of this right of objection to every juryman, by the clerk, as he was-called up to be sworn ; and after objecting to a number, he permitted Mr. Love to be sworn, so that he may be said to have been a juror of his own choice. Besides, he had a right to a copy of his indictment, and the panel of the jury, thm: ' /hole days before his trial; one of the ends and de= signs of this indulgence was, that a prisoner might inquire into the character and qualifications of every juror who might pass upon his trial, and if he did not do so, it was his own fault. The court will not now permit him to take advantage of his own negligence.

Motion for new trial overruled, and rule discharged.

The presiding judge then passed sentence of death on the prisoner, but he was afterwards pardoned by the governor.

Present, BuRke, Geimke, Waties and Bat.  