Lee v. Peter

The object of the 9ih section of tile act of 1797, cli. 87, was to give to the parties, plaintiff and defendant each, the privilege of striking from the list of twenty jurors, four of the jurors against whom no cause of challenge could be established. To secure the full enjoyment of this privilege, the panel before it is stricken from, should present twenty names beyond the reach of challenge, either as a principal cause or to the favor, and the parties have the right to have their causes of challenge heard and determined upon before the panel is drawn from the ballot box.

Appeal from Montgomery county court. This was an action of Slander, instituted by the appellant against the appellee, on the 13th November, 1830. Issue was joined upon the plea of not guilty. At the trial the following exceptions were taken by the parties. 1. This case being called for trial, and a panel of twenty jurors drawn from the ballot box, according to law, and presented to each party to strike from, according to the same law, and after the defendant had struck from the copy of the panel presented to him, and delivered back his copy of the panel so struck by him, to the clerk, and the clerk had delivered the same to the court, the plaintiff, before striking the name of any juror from the panel, offered to challenge for cause the polls of the said panel, that is, to shew cause of challenge for favor against the several individuals composing the said panel, and prayed the court to have such causes of challenge examined, and tried separately against each poll challenged, according to the legal mode of trying and determining challenges against jurors for favour, and to have such challenges successively, so tried and determined before the striking of the said panel, so that if any such challenges be sustained, the said panel may be filled up by further draughts from the ballot box, or if that should be exhausted by successive challenges for cause, then from the tales until a panel of twenty competent jurors, free from challenge and cause of challenge for favor, be formed for the parties to strike from. But the court (Kilgour and Wilkinson, A. J’s) overruled such motion, and refused to allow any challenges for favor to the polls of the said panel, until the same should have been struck by the parties, and the twelve jurors called to the book to be sworn; the defendantoffering and agreeing, that if such challenges should embrace every individual juror on the panel, to waive any objection to the allowance of such challenge ; but objecting to the challenge against any individual juror or jurors, not embracing every individual on the panel. The plaintiff excepted. 2. In the further proceeding of the court, for the trial of this cause, and after the motion and decision of the court, as stated in the plaintiff’s first preceding exception, the plaintiff, by his counsel, objected to William Price, one of the twenty persons drawn as aforesaid, as competent jurors, on the ground that he had a matter of fact depending for trial at this term in this court. And the court, (Kilgour and Wilkinson, A. J’s) sustained the said objection to the said juror, and directed the clerk to withdraw his name from the lists aforesaid, and to draw the names of another juror from the names remaining in the ballot box, and to deliver lists of the jurors so drawn as aforesaid, with the name of the juror now to be drawn, in lieu of that of the said Price, to the counsel of the plaintiff and defendant, that they might each strike four names therefrom, which was done accordingly. The defendant excepted. 3. After the plaintiffs and defendants’ foregoing bills of exception had been reserved as aforesaid, the plaintiff further offered challenges to the favor against each and every individual juror on the said panel of twenty, before having struck any individual from said panel, and prayed that such challenges might be examined and tried, and determined according to law, before the striking of said panel, to which defendant objected, and the court sustained the objection, and refused to admit the said challenges or any of them, before the said panel should have been struck, and the twelve jurors, not struck for the same, called to be sworn. The plaintiff excepted, and the verdict and judgment being for the defendant, the record was brought upon thé appeal of the plaintiff before this court.