the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion, wait or not for the return of the attachment. (5828 R. L. 1910)

523. Manner of Drawing Jury-Before the name of any juror is drawn the box must be closed and shaken, so as to intermingle the ballots therein. The clerk must then, without looking at the ballots, draw them from the box. (5829 R. L. 1910)

Failure to fold ballots and draw jury in compliance with law is error. Grant v. State, 11 Okla. Cr. 396, 146 P. 919.

524. Disposition of Ballots-When the jury is completed the ballots containing the names of the jurors sworn must be laid aside and kept apart from the ballots containing the names of the other jurors until the jury so sworn is discharged. (5830 R. L. 1910)

525. Defendant to Be Informed of Right-When twelve men are called as jurors the defendant must be informed by the court or under its direction, of his right to challenge the jurors, and that he must do so before the jury is sworn to try the cause. (5850 R. L. 1910)

526. Classes of Challenge to Individual-A challenge to an individual juror is either:

527. When Taken-It must be taken when the jury is full, and as soon as one person is removed by challenge another must be put in his place, until the challenges are exhausted or waived. The court, for good cause shown, may permit a juror to be challenged after he is sworn to try the cause, but not after the testimony has been partially heard. (5852 R. L. 1910)

528. Peremptory Challenge-A peremptory challenge may be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must excuse him. (5853 R. L. 1910)

If defendant fails to exhaust all his peremptory challenges, he cannot complain if court overrules his challenge for cause. Hyde v. Terr., 69; Warren v. State, 6 Okla. Cr. 1, 115 P. 812; Colbert v. State, 4 Okla. Cr. 500; Brown v. State, 11 Okla. Cr. 498; Tudor v. State, 14 Okla. Cr. 67, 167 P. 341; Turner v. State, 4 Okla. Cr. 165.

529. Same Number Allowed-In all criminal cases the prosecution and the defendant are each entitled to the follow

ing peremptory challenges; Provided, that if two or more defendants are tried jointly they shall join in their challenges: First. In capital offenses, nine jurors each.

Second. For offenses punishable by imprisonment in the State prison, five jurors each.

Third. In other prosecutions, three jurors each. (5854 R. L. 1910)

530. Challenge for Cause-A challenge for cause may be taken either by the State or the defendant. (5855 R. L. 1910) 531. Challenge for Cause Classed-It is an objection to a particular juror and is either:

First. General, that the juror is disqualified from serving in any case on trial; or,

Second. Particular, that he is disqualified from serving in the case on trial. (5856 R. L. 1910)

532. Causes for Challenge, in General-General causes for challenge are:

First. A conviction for felony.

Second. A want of any of the qualifications prescribed by law to render a person a competent juror, including a want of knowledge of the English language as used in the courts.

Third. 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. (5857 R. L. 1910)

A person convicted in another state is not disqualified. Queenan v. Terr., 11 Okla. 261.

533. Particular Causes-Particular causes of challenge are of two kinds:

First. 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 chapter as implied bias.

Second. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias. (5858 R. L. 1910)

A mere impression as to guilt or innocence does not disqualify a juror, if he can and will be guided by the evidence. An opinion on the merits as it will be developed by the evidence, or ill-will toward defendant must exist-there must be an abiding opinion on the merits of the case. Jones v. State, 8 Okla. Cr. 576, 129 P. 446; Huntley v. Terr.. 7 Okla. 60.

A fixed opinion as to guilt or innocence of defendant will disqualify juror. Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183; Stone et al. v. State, 12 Okla. Cr. 313, 155 P. 701.

An expression of a juror "I would think he wouldn't be charged if he was not guilty," etc., is a disqualification. Grant v. State, 11 Okla. Cr. 396, 146 P. 919.

534. Challenge for Implied Bias-A challenge for implied bias may be taken for all or any of the following causes, and for no other:

First. Consanguinity or affinity within the fourth degree inclusive, to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or to the defendant.

Second. 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 offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages.

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

Fourth. 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 prosecution.

Fifth. Having served on a trial jury which has tried another person for the offense charged in the indictment or information.

Sixth. Having been one of the jury formerly sworn to try the indictment or information and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it.

Seventh. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.

Eighth. If the offense 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. (5859 R. L. 1910)

A conscientious opinion against death penalty is a disqualification. Smith v. State, 5 Okla. Cr. 282, 114 P. 350; Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101.

Fact that a juror has sat upon a like case does not disqualify him. Johnson v. State, 1 Okla. Cr. 322, 97 P. 1059.

Juror who says that he would not believe an accomplice, though corroborated, is disqualified. Gilbert v. State, 8 Okla. Cr. 329, 127 P. 889.

Affidavit as to previous expression of juror as to guilt of defendant, if not contradicted, will, ordinarily be taken as true. Stewart v. State, 4 Okla. Cr. 564, 109 P. 243.

535. Right of Exemption Not Cause for Challenge-An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. (5860 R. L. 1910)

536. Cause for Challenge Must Be Stated-In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court. (5861 R. L. 1910)

The statute in no wise changes the essential qualifications which a juror must possess, it merely furnishes a test by which those qualifications may be determined. And if a juror states that, notwithstanding such an opinion, he will act fairly and impartially upon the evidence, he is competent. Turner v. State, 4 Okla. Cr. 165, 111 P. 988; Smith v. State, 14 Okla. Cr. 250, 174 P. 1107.

An opinion necessary to disqualify must be based upon what purports to be the facts. Scribner v. State, 3 Okla. Cr. 601 108 P. 422. A fixed opinion which it will take strong evidence to remove, is a disqualification, notwithstanding the juror states that he will be governed by the evidence. Tegeler v. State, 9 Okla. Cr. 139, 130 P. 1164.

The question raised on the competency of a juror on the grounds of having expressed an opinion, is one of both law and fact to be determined by the court, and unless it is apparent that such discretion has been abused, it will not be disturbed. Gentry v. State, 11 Okla. Cr. 356, 146 P. 719.

The doctrine in the Turner, Scribner and Tegeler cases distinguished from the doctrine in the Gentry case (Id.). Horn v. State, 13 Okla. Cr. 355, 164 P. 683.

A known ground of challenge must be raised before verdict. Owen v. State, 13 Okla. Cr. 195, 163 P. 548.

Fact that a juror, who, as jailor, has had charge of defendant, is not a disqualification. David v. State, 14 Okla. Cr. 535.

Fact that a minor is impaneled on a jury does not vitiate the verdict. Brown v. State, 14 Okla. Cr. 174.

Court may excuse member of regular panel unless such action would prove prejudicial to either party. Proper to order absent member of regular panel brought in and examined as to qualifications for the cause before the court. Beatty v. State, 5 Okla. Cr. 105, 113 P. 237.

When, on account of challenges, the regular panel is insufficient to try cause, talesmen may be summoned to complete panel. Remer v. State, 3 Okla. Cr. 706, 109 P. 247.

Challenge to panel is the procedure when special jurors are summoned by prejudiced officer. Saunders v. State, 4 Okla. Cr. 265; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842; Harjo v. U. S., 1 Okla. Cr. 590, 98 P. 1021.

When verified challenge to panel is interposed on grounds of prejudicial acts of summoning officer, and such grounds are not denied, it should be strongly construed against opposite party. Harjo v. U. S., 1 Okla. Cr. 590, 98 P. 1021.

An officer can exercise his discretion in selecting and summoning jurors, provided they do not exclude competent persons on account of race or color. Smith v. State, 4 Okla. Cr. 328; McIntosh v. State, 8, Okla. Cr. 469, 128 P. 735.

Trial court may, in his discretion, and before jury is sworn to try cause, excuse any juror, without assigning any reason therefor. Cochran et al. v. U. S., 14 Okla. 108.

Challenge to panel having been sustained on account of prejudice of officer, not error for part of same panel to be resummoned by an unprejudiced officer. Hisaw v. State, 13 Okla. Cr. 485, 165 P. 636. General Notes of Qualification, etc.

Destruction of three names drawn from the box, who are known to be non-residents, and the substitution of three other names from the box, does not invalidate the jury. Harmon v. Terr., 9 Okla. 313.

A known cause for challenge is waived by failing to make timely objections. Queenan v. Terr., 11 Okla. 261; Robinson v. Terr., 16 Okla. 241; Horton v. State, 10 Okla. Cr. 294, 136 P. 177; Humphrey v. State, 11 Okla. Cr. 288, 146 P. 230.

Prejudice of jury commissioners or of an individual juror against a certain crime is no ground for challenge to the panel. Remer v. State, 3 Okla. Cr. 706, 109 P. 247.

Prejudice of an individual juror against defendant is no ground for challenge to the panel. Remer v. State, 3 Okla. Cr. 706, 109 P. 247.

Statutory grounds for challenge to the panel exclude all other grounds not enumerated. Remer v. State, 3 Okla. Cr. 707, 109 P. 247.

On motion to set aside panel on grounds of any irregularity, the burden is on movant to show existence of such grounds. Munn v. State, 5 Okla. Cr. 245, 114 P. 272.

Challenge to trial jury panel must be predicated on facts which are prejudicial to defendant. Wood v. State 3 Okla. Cr. 553, 107 P. 937; Edwards v. State, 8 Okla. Cr. 341, 127 P. 872.

Objections to a panel after verdict, in absence of showing of prejudice to defendant, will not be considered. Baker v. State, 9 Okla. Cr. 47, 130 P. 524.

Motion to quash panel should be overruled when only a part of panel is involved in grounds of such motion. In such case, challenge to individual juror is remedy. Stuard v. State, 6 Okla. Cr. 94, 116 P. 204.

Juror not subject to challenge on grounds of service of time, unless he has actually served two weeks. But to exempt him from challenge on such ground, the court must enter an order that the business of the court can be disposed of within six days, unless he be actually engaged in the trial of a cause; Stuard v. State, 6 Okla. Cr. 94. 116 P. 204.

Neither party has a vested right in a juror until he is sworn to try the cause. Nor is there any ground for complaint unless an objectionable juror is forced upon a party after he has exhausted his peremptory challenges; Blankenship v. State, 10 Okla. Cr. 551, 139 P. 840.

After a juror has been selected, it is too late to challenge the panel. And unless record shows the grounds upon which panel has been chal