When the jury have once been sworn they can not leave the box without the leave of the court, and then only in company with some officer of the court. If, in consequence of being unable at once to come to a conclusion, they obtain leave to withdraw in order to consider their verdict, they are kept apart from any one, under the charge of an officer, who is sworn not to speak to them (except to ask them whether they have agreed), or suffer any one else to do so. Their verdict will be set aside if they speak with any one interested, or cast lots as to which way they shall decide. In these and other cases of delinquency they may be fined. By leave of the court they may have reasonable refreshment.(e) If the trial is adjourned over night in treason or felonies, the jury retire in custody of the sheriff and his officer, who are sworn to keep them together. In misdemeanors they are allowed to go home on engaging not to listen to any thing spoken to them as to the case under trial. If during the trial, before verdict is given, one of the jury dies, or is taken so ill that he is not able to proceed with the trial, or without permission leaves the box,(f) the jury is discharged and a new one sworn to try the case. Of course in such an event the remaining eleven may, and most frequently will, be in the new jury.

We have been hitherto referring to common juries. But as in civil, so in criminal cases, special juries are sometimes summoned. But this is only in misdemeanors, where the record is in the queen's bench division, and only by permission of the court on motion of either the prosecutor or the defendant. The party applying for a special jury must pay the extra fees and expenses, unless the court certifies that it was a proper case to be tried by a special jury. These jurors are taken from a higher class than common jurors, their qualifications being determined by statute.(g) The instances of the trial of a criminal case by a special jury are so rare that we need not enter into further particulars.

Another exceptional form of jury was, until lately, some

(e) v. 33 and 34 Vict., c. 77, § 23. (ƒ) R. v. Wood, 10 Cox, 573. (g) 33 and 34 Vict., c. 77, 26.

times demanded; a jury de medietate linguæ. Formerly, in cases of felony or misdemeanor, but not of treason, an alien might claim his right to be tried by a jury, half of whose number were aliens, or, at least, if not half, as many as the town or place could furnish. But this privilege was taken away by the naturalization act, 1870; (h) and now an alien is tried as if he were a natural-born subject.(¿)

[In some states, as Ohio, Kentucky, and Iowa, the whole subject of challenging is determined in great detail by statute; in others, the grounds for challenge are left substantially as at common law. The challenge on the ground of a previously formed or expressed opinion as to the defendant's guilt has given rise to more decisions in the United States than on all other grounds together. A digest of the decisions may be found in the note to § 771, 1 Bishop's Criminal Procedure. If the proposed juror, in a capital case, has such conscientious scruples against capital punishment that he would not find a verdict of guilty, he must, if challenged, be excluded. When he admits he has a fixed opinion against capital punishment, but does not say he would not find a verdict of guilty, it has been held he should be excluded. (1) And, contra.(2) It has likewise been held good ground for challenge that the juror would not render a verdict of guilty on circumstantial evidence; (3) that he does not think the matter charged against the defendant is a crime;(4) that he holds the statute under which the defendant is indicted unconstitutional, and, therefore, would not bring in a verdict of guilty.(5)

An exemption is a privilege of the juror; if he does not choose to claim it, his failure does not give either party ground for challenge.

(4) 33 and 34 Vict., c. 14, 8 5.

() We have already referred to another case of so-called jury de medietate linguæ, v. p. 300.

(1) O'Brien v. People, 36 N. Y. 276; Walker v. State, 40 Ala. 325. (2) Atkins v. State, 16 Ark. 568; People v. Stewart, 7 Cal. 140; Com monwealth v. Webster, 5 Cush. 295.

(3) Gates v. People, 14 Ill. 433. (4) Choteau v. Pierre, 9 Mo. 3. (5) Commonwealth v. Austin, 7 Gray, 51.

The trial of a challenge for favor by triers is generally abolished by statute, and trial by the court substituted.

Parties may waive their right to challenge. If either party, knowing the existence of ground for challenge, omits to challenge before the juror is sworn, he waives his right to except to the juror on such ground. It is held by some courts that if the party omits to use the means given to him by the law, of ascertaining the juror's competencyif he omits to inquire of the juror or challenge him before he is sworn-it is too late to except to him.(1) In other courts, this is denied or qualified.(2)

If a challenge is erroneously overruled, and the juror is then peremptorily challenged, this is not cause for new trial or reversal, if the challenging party goes to trial without exhausting his peremptory challenges.(3)

In Ohio, where there are several defendants, and there has been no severance, each defendant is entitled to as many peremptory challenges as if he were tried alone.(4) In Kentucky(5) and Iowa,(6) all the defendants constitute one party, and a challenge by any one of them is a challenge by all.

In the various states, statutes ordinarily give the defendant in capital cases a large number (in some, twenty; in others, twenty-three; in Michigan, thirty) of peremptory challenges; and, in all other cases, misdemeanors as well as felonies, a smaller number-in some states, two; in others, three. Generally, the state has a limited number

(1) State v. Howard, 27 N. H. 171; Stalls v. State, 23 Ala. 25; Gillespie v. State, 8 Yerg. 507; Beck v. State, 20 Ohio St. 228, the prin ciple stated in a civil case, Kenrick v. Reppard, 23 Ohio St. 333.

(2) Commonwealth v. Wade, 17 Pick. 395; Commonwealth v. Flannagan, 7 Watts & S. 515; Thompson v. Commonwealth, 8 Gratt. 637, State v. Underwood, 6 Ired. 96; Ogle v. State, 33 Miss. 383; State v. Bunger, 14 La. Ann. 461; Stoner v. State, 4 Mo. 368; State v. Groome, 10 Iowa, 316.

(3) Nimms v. State, 16 Ohio St. 221; Erwin v. State, 29 Ohio St. 186; Carroll v. State, 3 Humph. 315; State v. Elliott, 45 Iowa, 486. But contra, Dowdy v. Commonwealth, 9 Gratt. 727.

(4) 74 Ohio L. 346.

(6) Rev. Stat. (1873), p. 681.

(5) Crim. Code, ¿ 198.

the same in all cases. In some states, the number is three; in some, two. In Illinois, the defendant and the state have alike twenty peremptory challenges in capital cases, ten in cases where the punishment is imprisonment for more than eighteen months, and six in all other cases.(1)

When talesmen are required to fill the jury, the court directs the sheriff to call the required number. The sheriff is not restricted to persons in the court-house.(2) In Ohio, the statute prohibits summoning as talesman any person known to be in the court-house at the time.

In Ohio, either party has the right, when talesmen are needed, to call upon the court to draw up a list of names to constitue a special venire.

Under the criminal codes of Kentucky(3) and Iowa, (4). no juror is sworn as such, till twelve are accepted, when the twelve are sworn together. In the absence of statutory regulation, the court may require both parties to make their peremptory challenges, after having exhausted their challenges for cause, to each juror as called, and, upon default, may require the juror to be sworn as such at once, before calling another.(5)]

(1) Rev. Stat. (1877), pp. 405, 406.

(2) State ». Lamon, 3 Hawks (N. C.), 175.

(3) 8217.

(4) Rev. Stat. (1873), p. 683.

(5) Schuffin v. State, 20 Ohio. St. 233.

CHAPTER XIV.

THE HEARING.

[A PERSON who is insane, is held incompetent to defend himself. Accordingly, provision is made in most of the states that upon proper suggestion that a person under indictment is insane, all proceedings against him shall be stayed until that question is determined. The determination of that question is not the determination of any question arising under the indictment, for it is the ascertainment of his sanity or insanity at the time the inquiry is made, not his sanity or insanity at the time the offense is charged to have been committed. In Ohio, if suggestion by counsel is made, and the certificate of a respectable physician is presented to the court at any time before sentence, that the defendant is not sane, a jury is impaneled to determine the fact if he is insane, at the time of the impaneling of such jury. If the verdict be that he is not sane, proceedings are stayed until his restoration to sanity; and meanwhile the fact is certified to the probate judge, by whom the defendant is to be dealt with, as if found insane by the probate judge. Upon his restoration, or if he be found sane, the prosecution proceeds. (1) If a convict, sentenced to death, appear to be insane, a like trial is bad; it he be found insane, execution is stayed until the governor, convinced that the convict has become of sound mind, shall issue a warrant appointing a time for his execution.(2) There are substantially similar provisions in Kentucky,(3) Illinois,(4) and Iowa.(5)

At any time before the jury is sworn to try the issue, the prosecuting attorney may enter a nolle prosequi. This is a

(1) 6 Ohio L. 339.

(3) Crim. Code, ? 156.

(5) Rev. Stat. (1873), p. 710.

(2) Ibid., p. 357.

(4) Rev. Stat. (1877), p. 391.