
    Howerton vs. The State.
    December 19.
    Jury. Challenge propter affectum. Loose impressions and conversations of a juror as to the prisoner’s guilt or innocence, founded upon rumor, would not? if disclosed by him or others to the court on the selection of the jury, have the effect to set him aside as incompetent; nor, if disclosed after verdict, be a cause of new trial,
    Howerton was indicted by the Grand Jury of Cannon-county, on the 23d of March, 1838, for horse stealing. He' pleaded not guilty, and was immediately put upon trial, but the jury were unable to agree, and a mistrial was entered. — • At May Term, Í838, he was tried and found guilty. He' moved for a new trial upon the ground that two of the jurors,previously to their being called to be of the jury, had expressed their opinion that he was guilty, — although when tried as jurors, they declared, upon oath, that, they'had formed no opinion. To this purpose he made his own affidavit, and produced the affidavits of three other persons, one of whom swore that Bryant, one of the jurors, before' he was called to be of the jury, had expressed his opinion that the defendant was guilty of the charge" preferred against him, and ought to be convicted and sent to the'penitentiary. The second affidavit stated that the affiant had heard;St. John, one of the jurors, speaking of the defendant previous to the March' Term of the- Court, declare “that he ought to have been sent to the penitentiary before.” The' third affidavit stated that the same St. John, after the mistrial at March Term,- “expressed his opinion upon the merits of the case.”'
    His Honor, Judge Marchbanks refused a new trial, and' the defendant appealed in error.
    Cook and E. H. Ewing, by appointment of the court,
    appeared for the plaintiff in error.
    The Attorney General, on behalf of the State,
    said that the two last affidavits were not to the purpose, — the second merely stating that the juror had expressed his opinion of the general bad character of the defendant, not as to his guilt in the particular case; — the third, that the juror had expressed an opinion upon the merits of the case indeed, but not that the defendant was guilty. The first affidavit is to the point, that the juror bad actually declared bis opinion that the defendant was guilty in the premises, before he was called to be of the jury. But this was a mere loose declaration, which is fully done away by his swearing that he was without an opinion.
    December 20.
    The juror swears that he was impartial. The affidavit stales that the affiant heard the juror admit his partiality in conversation.
   Reese, J.

delivered the opinion of the court.

The jurors who returned the verdict in this case were tried before the presiding judge, according to our practice, to ascertain whether they were good and lawful men, and above .all just exception. Upon this trial and examination, all who were elected by the prisoner, and among the rest, one Little-bery Bryant and one Thomas St. John, testified, on oath, that they had neither formed nor expressed an opinion as to the guilt or innocence of the prisoner. After a verdict of conviction, the defendant, on a motion for a new trial, presented to .the court his affidavit, stating that, at the time, Bryant and St. John were put to him for challenge or election, he did not know that they had formed and expressed an opinion; and his affidavit was accompanied by the affidavit of three persons, to prove that the jurors in question had formed and expressed the opinion that he was guilty. ¿

Two of these affidavits relate to the juror St. John, one of them stating that the juror had said, in reference to some previous conduct of the defendant, that he ought to have been .sent to the penitentiary; and the other, that he had expressed his opinion upon the merits of the case before the court, without disclosing in the affidavit whether that opinion was favorable, or the contrary. It is obvious that these affidavits deserve not the least consideration.

The other affidavit relates to the juror, Bryant, and states that the juror, shortly before the trial, declared to affiant that his opinion was that the prisoner was guilty “of the charge, and ought to be convicted and sent to the Penitentiary.” And the question is — Ought a new trial to have been granted on the ground of this affidavit? We are clearly of opinion that it pught not.

Note. The anthorities upon this subject will be found collected in 1 Chitty’s Criminal Law, 542, Note A, 3d Am., from the 2d Eng. Ed., and 1 Cowan, 438 in

Without insisting, as might well be done, that the oath of the juror, upon the trial quoad affectum, before the court, would be an equipoise as against the oath contained in the affidavit, we think that if there had been other affidavits of the same tenor, they ought not to countervail the oath of the juror. The loose impressions and conversations of a juror, founded upon rumor, would not, if disclosed by him, or others, to the court, have the effect to set him aside as incompetent, and might, therefore, be readily forgotten, or even, perhaps, properly pretermitted by the juror, when upon oath, as not deserving to be regarded as the formation or expression of opinions and convictions. Nothing would be more calculated to impair the just administration of the laws than to set aside verdicts upon such grounds.

When a case shall arise of a juror, hostile to a defendant, and maliciously seeking, with a view to his injury, to pass upon his trial, by denying upon oath his opinions and convictions, it will present a case, which, as it will differ from the present, may receive from us a different determination.

Let the judgment be affirmed.  