
    Day v. The Commonwealth.
    December Term, 1846.
    Criminal Law — Jurors—Qualifications—Freeholder.— Under the act of February 24th, 1846, a juror in a criminal case, must be a freeholder in the county to the officer of which the venire facias is directed.
    The prisoner, a free mulatto man, was tried before the Superior Court of Chesterfield, for an attempt to co'mmit a rape on a white woman; was found guilty and sentenced to be hung.
    Various exceptions were taken by the prisoner during the progress of the trial; but it is only necessary to notice the second. Beverly J. Sizer was called as a juror, and having been examined touching his indifferency, was adjudged competent; but the juror immediately afterwards, stated that he was not a freeholder in the county of Chesterfield, though he was in the county of Powhatan. Whereupon, the prisoner challenged the juror, upon the ground of his want of a freehold qualification in the county; but the Court overruled the objection, and the prisoner excepted.
    After the jury had rendered their vérdict, the prisoner, by his counsel, moved the Court in arrest of judgment; but the Court overruled the motion, and entered judgment upon the verdict. And then the prisoner applied to the General Court for a writ of error, which was awarded.
    ^French, for the prisoner.
    The Attorney General, for the Commonwealth.
    
      
      See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   EOMAX, J.,

delivered the opinion of the Court.

• This Court has not deemed it necessary to consider all the various matters of error, alleged in the prisoner’s petition for his writ of error; being of opinion, that the second of those errors is sufficient for reversal of the judgment which has been rendered in the Court below. That error is, that B. J. Sizer, (who was returned as a juror upon the first writ of venire facias,) was not a freeholder within the county of Chesterfield, where the trial and prosecution were had. The record shews that this venireman possessed a freehold in the county of Powhatan, but none in the county of Chesterfield. The act concerning trials in criminal cases, 1st section, directs that the venire facias shall “command the sheriff to summon twenty-four good and lawful men, freeholders of his bailiwick.” It would seem to be doing'great violence to the language of this writ, if it were not construed that the freehold of the juror, as well as his residence, should be situated within the county.

If we advert to the antiquities of the English law, and the place which, freeholders occupied in the earlier judicial system of England, out of which many of the rules and principles of modern jurisprudence have grown up, we can see much reason, when freeholders were substituted on the assize or the jury, in the place of the ancient pares curias, why the freeholders should still be freeholders of the same county.

It seems from 4 Bac. Abr. (Todd’s edi.) SS6, and 2 Hawk. P. C. 573, that it is an essential requisite to constitute a freeholder to be a qualified juror, that the freehold be in the same county. The statute of 2 H. 5, c. 3, forbids persons to be admitted to pass in any inquest upon trial of the death of a man, &c. if the same person have not lands or tenements of the yearly value of 40s. And ^although this statute is entirely silent as to where the lands or tenements are situated; yet it has, in the construction of this statute, been always held that it must be land of the same county. 21 Vin. Abr. 250, $ 21, n. a.

In the present law, it seems not to be a matter that is left indefinite in what county the freehold shall lie. The legal and ordinary import of a “freeholder of his bailiwick,” both, combines to fix the freehold within the bailiwick or the county. The writ of error is therefore to be awarded; and the judgment reversed, and a new trial awarded.

THOMPSON and CEOPTON, J’s, dissented.  