R. 3029. SEC. 2764. A challenge to the panel can be founded only on a To the panel. material ceparture from the forms prescribed by statute in respect c. 31, 2974. to the drawing and return of the jury. A challenge to the panel should be moned: Baker v. Steamboat Milwausustained where the requisite num-kee, 14-214. ber of trial jurors has not been sum SEC. 2765. A challenge to the panel must be taken before a When made, juror is sworn, and must be in writing, specifying plainly and 800 C. '51, 2975. distinctly the facts constituting the ground of challenge. R. 3031. SEC. 2766. A challenge to the panel may be taken by either How tried. party and upon the trial thereof, the officers, whether judicial or C. 51, 2976. ininisterial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.. discharge of C. '51, 2977. SEC. 2767. If the facts of the challenge be allowed by the Allowance of: court, the jury must be discharged and its members disqualified jury. from sitting as jurors so far as the trial in question is concerned; R. 382 if it be disallowed, the court shall direct the jury to be empanelled. To jurors. SEC. 2768. A challenge to an individual juror is either R. 23033. emptory or for cause. SEC. 2769. It must be taken when the juror appears and When made. before he is sworn, but the court may, for good cause, permit it C. 51, 2979. to be taken at any time before the jury is completed. per C. '51, & 2978. R. 3034. R. 23935. SEC. 2770. A peremptory challenge is an objection to a juror Peremptory. for which no reasons need be given, but upon which the court shall exclude him. Number of: C. '51, 1774. SEC. 2771. Each party shall have the right to challenge per- nude. emptorily, five jurors and no more; and the parties shall challenge R. 43036, alternately, commencing with the plaintiff, and the challenges for 9G. A. c. 174, cause being first exhausted or waived, the parties shall then, in 23. turn, in the same order, exercise the right of peremptory challenge. An error in overruling a challenge | by a party only counts as one of the to a juror for cause, is waived if the number to which he is entitled, and, party making such challenge after- after a challenge by the other party, ward waives a peremptory challenge he may use any remaining right of to the jury containing such juror: challenge, even as to a juror in the The State v. Elliott, 45-486; Barnes box when the waiver was made: v. Town of Newton, 46-567. Fountain v. West, 23-9. A waiver of peremptory challenge Vacancy filled. 49. SEC. 2772. After each challenge, the vacancy shall be filled Causes of: before further challenges are made, and any new juror thus intro- R. 2271, 3037 duced may be challenged. A challenge for cause is an objection C. 251 1⁄2 1775. to a juror, and may be for any of the following causes: 1. A conviction for felony; 2. A want of any of the qualifications prescribed by statute to render a person a competent juror; 3. Inability to understand the English language, unsoundness of mind, or such defects in the faculties of mind or organs of the body as render him incapable of performing the duties of a juror; 4. Consanguinity or affinity within the ninth degree to the adverse party; 5. Standing in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, or being a member of the family, or in the employment of the adverse party; 6. Being a party adverse to the challenging party in a civil Challenge: how tried. R. 3 3042. C. '51, 2988. Same. C. '51, 2990. Talesmen. R. 2 3044. C. '51, 1777. Persons who keep the seventh day of C. '51, 2 2504. action, or having complained against, or been accused by him in a criminal prosecution; 7. Having already sat upon the trial of the same issues; 8. Having served as a grand or trial juror in a criminal case based on the same transaction; 9. When it appears the juror has formed or expressed an unqualified opinion on the merits of the controversy, or shows such a state of mind as will preclude him from rendering a just verdict; 10. Being interested in a like question with the issue to be tried. Questions as to the qualification of complaining was ignorant of that jurors are submitted to the sound dis- fact: Hurtert v. Weines, 27–134. cretion of the court, and its action will not be reviewed unless an abuse thereof is shown: Anson v. Dwight, 18-241; May v. Elam, 27-365. Cases of express and implied bias (as the terms are used in Rev. § 3939) discussed: May v. Elam, 27–365. A motion for a new trial, on the ground that one of the jurors had already sat on the trial of th same issues, should not be sustained in the absence of a showing that the party In an action against a city for damages, a citizen and tax payer of the city is not a competent juror: Darenport G. L. & C. Co. v. City of Davenport, 13-229; Dively v. City of Cedar Falls, 21-565; Cramer v. City of Burlington, 42-315. Where a juror was a partner of one of the parties, held that he was properly excused upon challenge for cause: Stumm v. Hummell, 39–478. SEC. 2773. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry thereon; and other evidence may also be heard. SEC. 2774. In all challenges, the court shall determine the law and the fact, and must either allow or disallow the challenge. See notes to § 2772. SEC. 2775. When the requisite number of jurors cannot otherwise be obtained, the sheriff shall select talesmen to supply the deficiency from the body of the county. The fact that a jury is filled up by | of the court is shown: Emerick v. talesmen is no ground of objection, Sloan, 18-139. unless abuse of discretion on the part SEC. 2776. A person whose religious faith and practice are to keep the seventh day of the week as a day set apart by divine command, and dedicated to rest and religious uses, cannot be compelled to attend as a juror on that day, and shall, in other respects, be protected in the enjoyment of his opinions to the same extent as those who keep the first day of the week. SEC. 2777. An exemption from service on a jury is not a cause Exemption not of challenge, but the privilege of the person exempted. The section applied; The State v. see § 228. Adams, 20-486. cause of chal lenge. R. 3041. C. '51, 2987. Majority verdiet: struck jury. R. 3045. C. '51, § 1776. Sec. 4406 is identical with this secAs to what persons are exemp ́ed, | tion. SEC. 2778. The parties may at any time, either before the jury is sworn, or after, agree to take the verdict of the majority, which agreement being stated to the court and stated on the record to have been made, shall bind the parties, and, in such case, a verdict signed by any seven or more and duly rendered, when read and not disapproved by said majority, shall, in every particular, be as binding as if made by a full jury; or, when both parties require it, a struck jury may be ordered, whereupon eighteen jurors shall be called into the box, and the plaintiff first, and then the defendant, shall strike out one juror in turn until each has struck six, and the remaining six shall try the cause. ORDER OF TRIAL. SEC. 2779.. When the jury has been sworn, the court shall pro- Procedure after ceed in the following order: 1. The party on whom rests the burden of proof, may briefly state his claim and the evidence by which he expects to sustain it; 2. The other party may then briefly state his defense, and the evidence by which he expects to sustain it; 3. The party on whom rests the burden of proof in the whole action, must first produce his evidence; the adverse party must then produce his evidence; 4. The parties then will be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permit them to offer evidence in their original case; 5. But one counsel on each side shall examine the same witness, and upon interlocutory questions, the party moving the court or objecting to testimony shall be heard first; the respondent may then reply by one counsel, and the mover rejoin, confining his remarks to the points first stated, and a pertinent answer to respondent's argument. Debate on the questions shall then be closed, unless the court request further argument. Bays v. Herring, 51-286. When the jury have been sworn, as Arnold, 20-273. jury is sworn. R. 3016. Evidence may be received out of its regular order for other reasons The true test, to determine upon than to correct an evident oversight whom is the burden of proof, is to con- or mistake, as provided in § 2799: sider which party would be entitled Huey r. Huey, 26–525; and the acto the verdict if no evidence were tion of the court in permitting plainoffered on either side. The burden tiff to introduce evidence not strictly is upon the party against whom, in rebutting, after the close of defendsuch case. the verdict ought to be: ant's evidence, will not be disturbed Ibid; Vieths v. Hagge, 8-163, 192. when no abuse of discretion is shown: Further, as to burden of proof, see Crane v. Ellis, 31-510. So held notes to the next section. where plaintiff had omitted to prove The number of witnesses on a par- title ne. essary to make out his case, ticular point may be limited by the and was allowed to introduce proof court in the ex rcise of its discretion: thereof after the evidence had been Kesee v. C. & N. W. R. Co., 50-78; closed: McNichols v. Wilson, 42–385. SEC. 2780. The parties may then either submit or argue the Argument: orcase to the jury. In the argument the party having the burden of the issue, shall have the opening and closing, but shall disclose in the opening all the points relied on in the cause; and if in the der of. R. 3047. Waiver of open- Number of at- ed: court to ar- Argument re tricted. R. 3050. To be in writing. R. 23051. Modification close he should refer to any new material, point, or fact not relied upon in the opening, the adverse party shall have the right of reply thereto, which reply shall close the argument in the case. entitled to open and close the argument: Hallowell v. Fawcett, 30-491; and where, upon the material issues in a case, the burden was upon defendant, held, not error to give him the opening and closing, although the allegation of the petition were not, in terms, admitted by the answer: Delaware Co. Bank v. Duncombe, 48 While the right of review of the As to the right of adverse counsel to reply to any reference made by counsel in closing to new matter, see Cross v. Garrett, 35-480. Where a defendant admits the allegations of plaintiff's petition he is SEC. 2781. If the party holding the affirmative waive the opening, he shall be limited in the close simply to a reply to his adversary's argument, otherwise the other party shall have the concluding argument. SEC. 2782. Every plaintiff or defendant shall be entitled to appear by one attorney, and if there be but one plaintiff or defendant, he may appear by two, and where there are several defendants having the same or separate defenses and appearing by the same or different attorneys, the court shall, before argument, arrange their order. SEC. 2783. The court may restrict the time of any attorney in any argument to itself, but shall not do so in any case before a jury. INSTRUCTIONS. SEC. 2784. When the argument is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court. All instructions asked, and the charge of the court shall be in writing. See notes to § 2789. SEC. 2785. If the court refuse a written instruction as demanded, but give the same with a modification, which the court may do, of: how made. such modification shall not be by interlineation or erasure, but shall be well defined, and shall follow some such characterizing words as 66 changed thus," which words shall themselves indicate that the same was refused as demanded. R. 23953. Only those given to be read: how given or refused. R. 3054. No reason See notes to § 2789. SEC. 2786. The court must read over all the instructions which it intends to give, and none other, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury all those which are refused, and must write the words "given" or refused," as the case may be, on the margin of each instruction. See notes to § 2789. SEC. 2787. If the giving or refusal be excepted to, the same may be without any stated reason therefor, and all instructions demanded must be filed, and shall become a part of the record. See notes to § 2789. court. SEC. 2788. After argument the court may, also, of its own Charge of the motion, charge the jury. Such charge shall be written in consecu- R. #3057, 3058, tively numbered paragraphs; and no oral explanation thereof 3060." shall be allowed. The provisions of this section shall also apply to the instructions asked by the parties. See notes to § 2789. taken. SEC. 2789: Either party may take and file exceptions to the Exceptions to: charge or instructions given, or to the refusal to give any instruc- how and when tions offered, within three days after the verdict, and may include R. 3059. the same in a motion for a new trial, but in either case the exceptions shall specify the part of the charge or instruction objected to and the ground of the objection. INSTRUCTIONS TO BE GIVEN BUT the decision of the facts and the apONCE: It is not error to refuse an plication of the rules of law given instruction which has already been them by the court: Muldowney v. substantially given: Rarer v Web- Ill. Cent. R., 32-176; and it is not ster, 3-592;" Rusch v. City of Daven-proper for the court to comment upon port, 6-443; Mills v. Mabon, 9-4-4; the evidence, and tell the jury what Rindskoff v. Berrett, 14-101; Russ facts are proven and what are not r. Steamboat War Eagle, 14-303; Harper v. Madren, 21–407. When the law of the case has once been stated to the jury, all further instructions should be refused: Wilson S. M. Co. v. Bull, 52–554. INSTRUCTIONS NOT PERTINENT: An instruction which is not pertinent to the pleading or evidence should be! refused, although containing correct propositions of law: Cuiter v. Fanning, 2-580: Gover v. Dill, 3-337; Conger v. Dean, 3-463; Wisner v. Brady, 11-248. But the court should give the instructions asked, if they are correct and there is any basis for them in the testimony: The State v. Gibbons, 10117. proven thereby: Russ v. Steamboat It is error for the cour to charge the charging that such facts constitute The giving or refusal of an instruction upon a inere abstract proposition of law, not referring in any way to The grouping together in one inthe evidence, is not sufficient to war-struction of legitimate facts which rant a reversal, unless it may be fairly the evidence tends to prove, and inferred that the jury was thereby misled to the prejudice of the party complaining: McGregor v. Armill, 2-30; but in suca case the fact that the jury was left without any guide as to the application of the proposi- When there is some evidence upon tions of law stated, may amount the point, an instruction which is apto error: The State v. Thompson, 45- | plicable to that point and correct in 414. It may also be error to give law should be given, without regard such instructions, where they have a to the weight of such evidence: Detendency to make an erroneous im- Camp v. M. & M. R. Co., 12–348. pression upon the jury, and mislead them: Moffett v. Cressler, 8-122; Van Tuyl v. Quinton, 45-459; Williamson v. Reddish, 45-550. INSTRUCTIONS TO BE UPON MAT-fense are wholly without proof, the TERS OF LAW AND NOT UPON THE FACTS: The instructions must state rules of law only, leaving to the jury WHEN COURT MAY TAKE CASE FROM JURY: Where there is no evidence, or where essential or integral elements of a cause of action or de Court may properly refuse to let the |