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422. General causes of challenge are,

1. A conviction for a felony:

2. A want of any of the qualifications prescribed by the code of civil procedure, to render a person a competent juror:

3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body, as renders him incapable of performing the duties of a juror.

§ 423. Particular causes of challenge are of two kinds:

1. For such a bias, as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias:

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2. For the existence of a state of mind on the part the juror, în reference to the case, or to either party, which satisfies the triers, in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.

§ 424. A challenge for implied bias may be taken for all or any of the following causes, and for no other:

1. Consanguinity or affinity within the ninth degree, to the person alleged to be injured by the offence

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charged, or on whose complaint the prosecution was instituted, or to the defendant:

3 Bl. Com. 363.

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the of fence charged, or on whose complaint the prosecution was instituted, or in his employment on wages:

Liv. Crim. Code, p. 529, art. 330, subd. 2.

3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution :

4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment:

The first part of this subdivision is taken from 2 R. S. 3d ed., 819, sec. 9. That part which excludes a coroner's juror is founded on the same principle.

5. Having served on a trial jury, which has tried another person for the offence charged in the indictment:

Liv. Crim. Code, p. 529, art. 330, subd. 4.

6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside,.

or which was discharged without a verdict, after the cause was submitted to it:

Liv. Crim. Code, p. 529, art. 330, subd. 5.

7. Having served as a juror, in a civil action brought against the defendant, for the act charged as an offence:

Liv. Crim. Code, p. 529, art. 330, subd. 5.

8. If the offence charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty: in which case he shall neither be permitted nor compelled to serve as a juror.

This subdivision is somewhat broader in its terms than the existing statute, but conformable to the construction which has been given it. The Revised Statutes provide that " persons of any religious denomination, whose opinions are such as to preclude them from finding any defendant guilty of an offence punishable with death, shall not be compelled or allowed to serve as jurors on the trial of an indictment for any offence punishable with death." 2 R. S. 3d. ed, 820, sec. 12. In The People v. Damon, 13 Wend. 351, it was held by the supreme court that "a person whose opinions are such as to preclude him from finding a defendant guilty of an offence punishable with death, is an incompetent juror on the trial of an indictment for an offence subjecting to that punishment; it is not the opinions on this subject of the religious denomination to which he belongs which exclude him, but his own opinions; and therefore, if he entertains them, though he does not belong to a religious denomination, he is incompetent to serve as a juror."

§ 425. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 423, and for no other cause.

The last six sections are intended to establish a clear and intelligible, as well as just rule, in respect to the grounds of exclusion of jurors on challenge. No subject in the whole range of criminal practice, has been found more productive of delay, or of embarrassment in the trial of causes, than this, and there is none which, in the present understanding of the rules applicable to it, calls more loudly for legislative interposition. Whether the embarrassments referred to arise from the rules which exist at the common law, or from a loose or mistaken application of them, it is immaterial to enquire. It is enough to know that they exist, and that without the establishment of some uniform standard of decision, their existence must inevitably continue. The fundamental principle on which the right of challenge rests, is, that every citizen, whether in a civil or criminal action, is entitled to the determination of his cause by a fair and impartial jury, and although in early times, a different principle prevailed, and the jury were taken from the neighborhood for the very reason that they were supposed to know something of the controversy, the wisdom of a more modern age has established as a test of the fitness of a juror, his perfect and entire impartiality between the parties. As a means of ascertaining whether this impartiality exists, the common law has established two forms of challenge, the one for principal cause, the other for favor. The difference between these two forms of challenge is that the former is based upon the allegation of a fact which carries with it evident marks, either of malice or favor, and is sufficient of itself to exclude the juror, without leaving anything to the discretion of the triers or of the court; while the latter, though of the same nature, is of inferior degree, and is to be resorted to only where, though the juror is not so palpably partial as to give cause for a principal challenge, yet there are grounds to suspect that he will act under some undue influence or bias, in which case the triers, in the exercise of a sound discretion, may reject him.

Under the former challenge, the sole enquiry is, whether the fact alleged as the ground of exclusion exists, or if it exist, whether it be sufficient. With a single exception, which will be presently alluded to, the grounds of this challenge are clearly defined and well understood-They embrace the case of relationship to either of the parties, interest in the event, and such other facts of a similar nature, and which are enumerated in section 424, as when once established, to render it

manifest that the juror cannot act impartially. At an early day, however, the courts resolved to regard the formation or expression of opinion by a juror as to the right of the case, as a ground of principal challenge, instead of leaving it, where it more properly belonged as a ground of challenge for favor, and out of this has arisen all the confusion and embarrassment of which so much complaint is made-The question, what degree of opinion will exclude the juror on principal challenge, or is more properly referable to the challenge for favor, though much discussed in the courts of this state, has never yet been so far settled as to relieve trials of the delays and difficulties by which they have been beset in its application. The cases all agree in the abstract rule that the formation or expression of an opinion as to the guilt or innocence of the defendant is a ground of principal challenge; or in other words, that when it is ascertained that the juror has formed or expressed such an opinion, the law adjudges and the court is bound to declare him iucompetent.

(Ex parte, Vermilyea, 6 Cowen, 564; The People v. Vermilyea, 7 Cowen, 108; The People v. Mather, 4 Wend. 231; The People v. Rathbun, 21 Wend. 542; The People v. Bodine, 1 Denis, 281; The People v. Honeyman, 3 Denio, 121; Freeman v. The People 4 Denio, 33.)

Beyond this, however, the boundary between a principal challenge and a challenge for favor, as well as the degree of opinion which is necessary to sustain either of them, has not been clearly defined, although a nearer approach has been made to a rule on the subject, than is to be found in the earlier cases. In The People v. Bodine, 1 Denio, 307, 308, the supreme court remarked:

"A fixed and absolute opinion may be necessary to sustain a challenge for principal cause; but not so where the challenge is for favor. In the first species of challenge, the result is a conclusion of law, upon ascertained facts; but in the latter, the conclusion is a matter of fact, to be found by the triers. No certain rule can be laid down for their guidance. They are sworn to try whether the juror challenged stands indifferent; (Gra. Prac. 2d. ed., 307; 1 Trials per Pais, 205; Anonymous, 1 Salk. 152, pl. 1; Bac. Abr. Juries, E. 12, notes;) and this must be determined upon their conscience and discretion, in view of the facts and circumstances in evidence before them. It is competent to prove that the juror challenged and the opposite party are in habits

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