
    The State vs. James A. Price.
    A prisoner on trial for murder will not be allowed to withdraw a peremptory challenge in order to challenge for cause, where the prisoner’s counsel ascertains from the juror upon his leaving the box, that there was a connection by marriage between the deceased and the'juror.
    The decision of a circuit Judge directing a jury to be organized for the trial of a capital offence, according to the late rule of Court, approved of.
    BEFORE "WHITNER, J., AT UNION, SPRING TERM, 1857.
    The report of his Hon'or, the presiding Judge, is as follows:
    “ This was an indictment for the murder of Joseph Hughes, 24th July, 1853. A mis-trial was had Pall- term, 1853, in consequence of tbe illness of a juror, and tbe defendant escaped from jail shortly before tbe succeeding term of tbe Court. He was re-committed in November last, and received bis trial at March term for Union district, and was convicted of murder.
    “ There was conflicting testimony as to tbe attendant circumstances leading to tbe homicide, and the grounds of appeal render necessary a report of tbe evidence. This, I propose to furnish very minutely, though a brief outline may render it more readily intelligible.
    “It will be seen, that tbe case made on tbe part of tbe prosecution, established tbe fact, that tbe deceased, Hughes, was slain by tbe prisoner, without'circumstances of excuse or mitigation. Tbe evidence relied on by tbe prisoner, was given by.two women, alleged eye-witnesses of the occurrences, tbe testimony of one given at tbe trial, and of tbe other, read from tbe notes of tbe presiding .Judge, taken at Pali term, 1858, by consent, as she bad left tbe country. These witnesses were assailed, and I presume in tbe estimation of tbe jury, discredited. They testified that tbe deceased committed a violent battery on tbe prisoner immediately preceding tbe only blows they declared were inflicted by him, tbe former striking with a battling stick, such as is used by washerwomen, tbe latter with a chair. They located tbe rencontre in tbe back yard at tbe bouse of tbe prisoner, though tbe dead body was found in tbe front yard, with an appearance of having been dragged a short distance from tbe spot where it bad been lying. They gave an account of tbe early transactions different from that given by witnesses introduced by tbe State, though none of them professed to have been immediately present when tbe mortal blows were struck. Tbe parties bad drunk freely, and so bad some of tbe witnesses. Tbe day was Sunday, and tbe fatal occurrences leading to tbe homicide transpired between sun-set and nine o’clock, at night, Tbe deceased was an infirm old man, much, the inferior of the prisoner in physical strength.
    “In reference to the first ground of appeal, the facts are precisely as follows: Dr. Askew was called and presented in the usual form to the prisoner, and peremptorily challenged. The challenge was noted and the juror was directed to withdraw. As he was walking off, he was called by defendant’s counsel to his seat, and during an interview between the juror and counsel, the Clerk was directed to proceed. Counsel asked the Clerk to stop. After a brief interview, the counsel asked to recur to this juror, that he might be permitted to challenge him for cause, alleging that he was then informed, for the first time, and by the juror, that cause existed. An objection was made on the part of the State, and the objection was sustained. -In order, however, that the whole fact should be known, on inquiry it appeared the juror had communicated that the mother of the juror’s wife and the wife of the deceased were sisters.
    “ In reference to the second ground of appeal, it may be said, that the argument was very full as well on the part of the prisoner as on the part of the State, the counsel for the prisoner maintaining that the case made, was a killing in self-defence, or at most, but manslaughter.
    “ The jury was fully instructed by the presiding Judge, as to the law of the case involving the questions of murder,' manslaughter, and killing in self-defence, and it is thought, in a> way entirely acceptable to prisoner’s counsel. The whole testimony was read over from my notes, and the attention of the jury called to the prominent facts, as declared by the witnesses. The jury was carefully guarded against adopting any suggestion, except so far as in their judgment the testimony should warrant. The verdict, the jury was told, should be the result of their own conclusion, and application of the law as expounded to the facts as ascertained by them, irrespective of. any opinion expressed or intimated from any quarter whatsoever. From tbe view I bad taken of tbe evidence, I was not favorably impressed as to either branch of tbe defence set up by tbe prisoner. I said to tbe jury distinctly, in reference to tbe alleged killing in self-defence, that, in my opinion, tbe facts established, would not warrant such a defence. In reference to tbe question of manslaughter, I remarked, that whilst I would feel it my duty, in favor of the'life of tbe prisoner, to communicate freely an opinion, if entertained, that tbe proof made out tbe defence; yet, that in this case, where there bad been such conflicting testimony, and so much depended on tbe credibility of witnesses, a question so peculiarly for the jury, I preferred to submit this whole branch of tbe defence to their unbiassed judgment, wholly uninfluenced by any impression made upon my own mind; that tbe evidence on which tbe question would be found to turn, was not presented in such a way as to justify any interference on tbe part of tbe Court, or to call for an expression of opinion on my part favorable to tbe prisoner. I believe tbe jury was fully and solemnly impressed, that with them alone, rested tbe entire responsibility of deciding tbe issue.
    
      “ In reference .to tbe third ground of appeal, it is proper to say, that when about to proceed with tbe trial, tbe counsel for tbe prisoner inquired if it was tbe purpose of tbe Court to organize tbe jury in conformity with tbe late Bule of tbe Court on that subject, and being'answered affirmatively, tbe organization of tbe jury proceeded.”
    Tbe defendant appealed, and now moved for a new trial, on tbe grounds, inter alia:
    
    1. Because tbe Court refused to permit tbe defendant, after be bad peremptorily objected to a juror, to show cause; when, in a moment after, and before tbe juror bad returned-to bis seat, tbe prisoner asked to be permitted to show cause against tbe juror, baying first at tbe moment after, been informed of tbe objection.
    3. Because bis Honor erred in ordering and directing tbe jury to be drawn according to tbe manner prescribed in tbe ninety-seventh Buie of Court.
    
      Herndon, for appellant,
    cited on 1st ground, 2 Hawk. P. C. 568; 2 Dal. 345; and on 2d ground, Con. of So. Oa. Art. 9, § 6, 1 Stat, 191; Act 1731, 3 Stat. 276 ; State vs. Sims, 2 Bail. 29 ; State vs. drank, 2 Bail. 66; 2 Speer, 422.
    
      Melton, solicitor, contra,
    cited, 32 Eng. C. L. B. 761.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

Tbe prisoner’s first ground raises tbe question, wbetber, after challenging a juror peremptorily, tbe challenge allowed, tbe juror baying left tbe.box, and tbe prisoner’s -counsel having ascertained from tbe juror that there was a connection by marriage (not relationship), be .could withdraw bis peremptory challenge, and challenge for cause ?

I answer tbe question, Tie could not! A peremptory challenge, Hawkins in bis 2 Book, 43 chap., 4 §, page 570, tells us, must be taken by tbe prisoner himself, even in such cases wherein he may have counsel.” This direction, it would be well should be more strictly attended to in practice. This challenge proceeds upon tbe notion, that tbe prisoner may upon looking at tbe juror be unwilling be should try him. When be has announced bis rejection, I do not see bow be can revoke it, otherwise than that be may be permitted, when bis rejection was tbe result of a sudden mistake, to take him as one of bis jury: or Avben tbe panel being exhausted, be elects to take one, whom be bad previously rejected. U. S. vs. Porter, 2 Dall. 345.

In Baldwin's case, 1 Tread. 289, 3 Brev. 309, it was beld, tbat a juror could not be examined to ascertain the cause, why be should not sit. Here, the course pursued is a greater violation of legal propriety. For the juror is excluded, and then examined by the prisoner’s counsel to ascertain the supposed relationship: and then be is to be put back to make a challenge for cause.

If, however, there was any sort of ground to question the ruling below, how can the prisoner now complain ? He did not exhaust the panel before he completed the jury of his choice. How can he ask for a new trial, when he has been tried by twelve good and lawful men freely selected by himself? I confess I think this is an end of his ground.

.The third ground with my entire concurrence has been decided against the prisoner in The State vs. Boatwright. I hope the rule, which conforms to English practice, and is not contrary to our statute law, which does not, at all, conflict with the Constitution, and which corrects an abuse, arising under our former practice, will never more be drawn in question. It has worked well, on every trial since it went into operation. It has prevented and may prevent guilty men from escaping the punishment due to their crimes. But it has never endangered, and never will endanger an innocent man. It preserves jury trials from the contamination of fraud, bribery, and undue influence, and is thus entitled to the support of honest and just thinking men, after time has been given to calm down, and reflect.

The motion is dismissed.

Whitker, Glover and Mustro, JJ., concurred.

Motion dismissed.  