
    THE PEOPLE OF THE TERRITORY OF UTAH, Respondent, v. W. WALTER LEWIS, Appellant.
    New Tbiau — Watveií oe Chahoenge. — The fact that one of the jury who tried defendant was one of the grand jury that found the indictment against him, where no question was asked of such juror touching the point, and no challenge for cause made, is not ground for granting a new trial.
    Appeal from a judgment of conviction of tbe district court of tbe first district and from an order refusing a new trial. Tbe opinion states tbe facts.
    
      Mr. James N. Kimball, for appellant.
    
      Mr. Charles B. Varían, for respondent.
   Twiss, J.:

At tbe May term, 1884, of tbe first district court, tbe grand jury of tbat district found and presented an indictment against tbe defendant, charging bim witb tbe crime of grand larceny.

Upon trial, in tbe following November, tliere was a verdict of guilty, and judgment thereon.

Tbe only ground upon which this court is asked to reverse tbe judgment is, tbat one John King, one of tbe trial jury which found tbe defendant guilty, was one of tbe grand jury which found tbe indictment against bim.

Neither tbe defendant nor bis counsel at tbe time of tbe trial knew tbat King was one of tbe grand jury tbat found tbe indictment. But after verdict and before judgment, tbe defendant moved for a new trial, based among others upon tbe ground tbat tbe juror King was on tbe grand jury tbat found tbe indictment against tbe defendant.

This motion was overruled, and from tbe order of tbe court overruling tbe motion, and from the judgment, the defendant appeals to this court.

Upon tbe trial twelve persons were called as jurors, and were sworn- upon tbe voir dire, and interrogated by tbe prosecuting attorney as to tlieir statutory qualifications, to wbicb there was no answer.

The jurors were then examined, by counsel for the defendant, as follows:

Q. “Are any of you acquainted with the defendant, Walter Lewis, here?”
Q. “Have any of you heard so much about his case as to form or express an opinion — an unqualified opinion— concerning his guilt or innocence? If any of you have, make it known. I will not put questions directly to each of you.”

Two other questions followed this, evidently for the purpose of learning if any of the jurors were related to the prosecuting witness, and if they had formed or expressed an opinion from anything they had heard him say. The counsel then said, “you don’t seem to answeí and I will not put the question to any of you particularly.”

It is claimed by the defense, that the failure in the examination of the jury upon the voir dire, to elicit from this juror the fact of his being one of the grand jury which found the indictment against the defendant, was not a waiver of the objection, and that it is still good and available to them. The cases of The People v. Reese et al., 3 Utah 72, and Rice v. State, 16 Ind. 298, are relied upon in support of this position.

In People v. Reese, the juror, Morris, was an alien, which is a general disqualification from serving in any case, and upon an examination by the prosecution upon the voir dire, he answered that he was a citizen of the United States; the defense asked no questions upon the subject, and not having reason to doubt the statement of the juror, went to trial. This court did not pass upon the much discussed, often, but never finally decided question, of the right or power of a defendant in a criminal case, to waive a trial by a jury of twelve citizens. We are of the opinion, that a decision of that question was not necessary (notwithstanding the argument of the prosecution in this case that it was), as it was apparent from the facts of the case that the defendant did not intend to waive this right. The court in its opinion, say, “as there was not only no intention to waive tbis qualification, bnt no negligence or want of watchfulness on the part of the defendants, which ordinarily would work a waiver of a right, we cannot hold that the facts in the case are such as should deprive the defendants of this important constitutional right.”

The case of Rice v. State is a strong case. Most of the facts are quite like those before us; and the leafned counsel for the defense placed much reliance upon it in his argument, but it differs from the case at bar in one important respect. The juror in that case “disclaimed having formed or expressed any opinion as to the guilt or innocence of the accused.” Taking into consideration the timidity and the apparent unwillingness of many jurors to answer questions unless they are individually interrogated, with the fact that no statement of the case, or the facts relied upon, as constituting the alleged offense, was made to the jurors, it is not surprising that there was no response to the question of the counsel for the defendant, for, unless they knew what the case alleged against the defendant was, they could not well know whether they had an opinion as to his guilt or innocence or not.

The fact that the juror served on the grand jury which found the indictment was good ground for challenge for implied bias, if made after the juror was called, and before he was sworn to try the case: Crim. Prac. Act, 1878, sec. 289. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either: 1. General — that the juror is disqualified from serving in any case, or: 2. Particular — that he is disqualified from serving in the action on trial.

Sec. 240. General causes of challenge are:

1. A conviction for felony.
2. A want of any of the qualifications prescribed by law to render a person a competent juror.
3. Unsoundness of mind, or such defect in the faculties of mind or organs of the body as render him incapable of performing his duties as a juror.

Sec. 241. A particular cause of challenge is:

1. For such a bias as, when the existence of the facts is ascertained, in judgment of law, disqualifies tie juror, and is known in tbis act as implied Mas. . . .

Sec. 242. A challenge for implied bias may be taken for all or any of tie following causes, and for no other. . . .

4. Having served on the grand jury which found the indictment.

But the challenge was not made. The failure to make it at the time required by the statute, was a failure to make it at a time when it could have been successfully made, with no greater interruption of the case than the retiring of one juror, and calling of another to take his place. It is one thing to excuse a juror upon a challenge substantiated by his own statement, but quite another to set aside a verdict after the necessary labor and expense of a trial; and some considerable degree of watchfulness is required of parties in eliciting facts pertaining to the qualification of jurors. They should not be permitted, indifferently, to pass over this important matter, and, after an awakening caused by an unfavorable verdict, successfully to move for a new trial, when a little more vigilance at the right time would have discovered good ground of challenge.

An express unqualified answer that the juror is a citizen, or that he has not formed or expressed an opinion as to the guilt or innocence of the accused, is sufficient to relieve the defense from further investigation, unless there . is something to put the party upon further inquiry. But we are of the opinion that mere reticence, when the twelve jurors are briefly and generally interrogated as to whether they have an opinion as to the guilt or innocence of the accused, is not, especially if there was no statement to the jurors of the facts set forth in the indictment as constituting the alleged offense.

The judgment of the district court is affirmed.

Zane, C. J., and EMERSON, J., concurred.  