
    John Beck v. The State of Ohio.
    By sections 134 and 135 of the code of criminal procedure, it Sa Made ground of challenge only to a juror, that he was a member of the grand jury which found the indictment; and such challenge for cause can be made only before the jury is sworn. Where no inquiry is made on the subject till after verdict, the existence of such cause for challenge, though previously unknown to the defendant and his counsel, will not necessarily entitle him to a new trial.
    
      Motion for the allowance of a writ of error to the court of common pleas of Hamilton county.
    The plaintiff was tried and convicted at the November term, 1870, of .the court of common pleas of Hamilton county, on an indictment for the crime of arson, and was by the court sentenced to imprisonment in the penitentiary for the term of one year.
    It appears from the record that after the return of a verdict of guilty by the jury, a motion was made by counsel for plaintiff in error to set aside the verdict and grant a new trial, supported by affidavits, showing the following facts:
    That one John Hickey was one of the grand jurors for the month of September, 1870, by whom the indictment in this case was found, and that, in the impanelling of a petit jury for the trial of the case, Hickey was called as a talesman, and served as a juror upon the trial.
    That after the jury was sworn, and before any testimony was heard in the case, a full statement of the case was made to the jury, both by the prosecuting attorney, and by the counsel for the present plaintiff; and that neither said plaintiff nor either of his counsel had knowledge, nor did they ascertain until after the. verdict had been rendered in the case, that Hickey had been a member of the grand jury by which the indictment had been found.
    The motion for a new trial was made on the ground of the incompetency of Hickey to serve as a juror in the trial of the ease, and the misconduct of Hickey in failing to disclose the fact that he was a member of the grand jury which found the indictment.
    The overruling of this motion is the ground of the present application.
    
      A. J. Pruden and A. S. Hamlin for the motion:
    By the constitution of Ohio the defendant below was entitled to have a trial by an vm/partiaZ jury.
    A grand juror is not an impartial juror, and is therefore not a competent petit juror. He had formed and expressed an opinion in the case.
    Neither the defendant nor his counsel at the time the jury was sworn knew that Hickey had been one of the grand jurors who found the indictment, and hence they could not challenge him for that cause, as is provided under sections 134 and 135 of the criminal code.
    The failure to challenge, under those circumstances, does not make the juror competent, and hence that part of the act of the legislature which so provides is unconstitutional.
    The misconduct of Hickey in not disclosing the fact that he had been a member of the grand jury, when he was sworn in the case or during the trial, entitled the defendant to a new trial under section 192 of the criminal code.
    
      F. B. Pond, attorney-general, and W. M.r Amjjt, prosecuting attorney, for the State.
   By the Court:

Section 134 of the code of criminal procedure declares that it “ shall be good cause for challenge to any person called as a juror on any indictment: That he was a member of the grand jury which found the indictment.” Section 135 provides that all challenges for cause shall .be made before the jury is sworn, and not afterward.”

The objection taken, after trial, to the juror Hickey, is thus declared by statute to be a ground of challenge only, and as such it may be waived. The court below was justified in regarding the failure to interrogate the juror, or to make inquiry into the subject-matter of this cause for challenge, before the jury was sworn, as a waiver of the same. We think the facts shown by the affidavits did not necessarily entitle the plaintiff to a new trial.

Motion overruled.  