court. In a case where the two jurors first admitted were sworn as triers and heard the evidence, the argument of counsel and the charge of the court, and, after consultation, reported that they could not agree in deciding the challenge, the court held that the challenge must be re-tried, and the court selected the third and fourth jurors to act as triers for that purpose.1 The triers having been selected by the court, the following oath is administered to them by the clerk: "You shall well and truly try and find whether A B, the juror challenged, stands indifferent between the people of the State of New York and the prisoner at the bar. So help you God." The triers then take their seat in the jury box. Where the triers of a challenge for favor to a juror were sworn to find whether the juror was indifferent "upon the issue joined," that qualification being objected to, it was held that the oath was erroneous.2 When the juror is challenged for favor and triers are appointed, the juror himself may be sworn as a witness before them, to state or explain any facts which do not impeach his character or his motives, or in relation to his having formed or expressed an opinion on the guilt of the prisoner, so, also, other witnesses may be called and sworn before the triers.3 Where, upon a challenge for favor, witnesses were introduced to prove an opinion expressed by the juror, as to the guilt of the prisoner, the district attorney was allowed to examine the juror himself, to rebut the evidence.1 The juror thus sworn is said to be sworn on his voir dire. The following is the form of oath administered to a witness before the triers: "You shall true answers make to such questions as shall be put to you, touching the challenge of A B as a juror, so help you God." And where on a criminal trial a person is drawn as a juror, and challenged to the favor, and called as a witness in support of the challenge to prove a bias growing out of what he had 1 2 Hale, 175; Co. Lit., 158 a; Peo. v. Dewick, 2 Park. Cr. R., 230; Dick. Sess., 190; 4 Park., 134. Freeman v. The Peo., 4 Den., 9. Peo. v. Fuller, 2 Park., 16; Co. Lit., 158; 1 Salk., 153; 2 Park., 579; 2 Abb. Pr. R., 256; 19 John., 115. Peo. v. Fuller, 2 Park., 16-579; 1 Park., 302. heard or read on the subject, it is proper, on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias, and whether he thinks it would influence him after hearing the evidence.1 And when examined as a witness for the purpose of sustaining a challenge to the favor, he will not be excused from answering whether he has any prejudice or bias against a religious sect, on the ground that such answer would disgrace him.2 The following oath is administered by the clerk to the juror, where he is sworn before the triers upon his voir dire: "You do solemnly swear that you shall true answers make to such questions as shall be put to you, touching your competency to serve as a juror in this cause (or, 'touching the challenge exhibited against you'), so help you God." The finding of the triers is, "that he stands indifferent, or (not indifferent)." The triers are the exclusive judges of the weight to be attached to the evidence of favor, and the challenging party is not entitled to an instruction from the judge that the evidence shows that the juror is not indifferent.3 The triers are to decide whether the juror is at the time of the trial altogether indifferent; the inquiry is not confined to the state of the juror's mind before coming into court; but if anything has occurred in court which has produced on his mind an impression of the guilt of the prisoner, it is sufficient to exclude him.1 Where a juror was found competent upon his own answers, but after he had been sworn and taken his seat, it transpired that he had misunderstood a question put to him, and had given a wrong answer, it was held that the decision upon his competency should be vacated and the trial of the challenge resumed.5 It is competent in the cross-examination of the juror, to ask him his opinion as to the character and extent of his supposed bias, and whether, in his opinion, he could try the case upon the 1 Peo. v. Knickerbocker, 1 Park., 302. Peo. v. Christie, 2 Park., 579. Smith v. Floyd, 18 Barb, 522; Peo. v. McMahon, 2_Park., 663; 4 Den., 9-35. Thompson v. Peo. 3 Park., 467. Peo. v. Wilson, 3 Park., 199. evidence without bias; but the opinion of the juror is by no means conclusive unless in the negative.2 Where the juror testified that he had read something about the case, and had formed an impression that the prisoner's character was bad, it was held competent to ask him whether, as a juror, he would disregard what he had heard out of the court, and would render a verdict upon the evidence.3 Where on the trial of a challenge to the favor, improper evidence is received, and the triers find the juror indifferent, and he is then challenged peremptorily, and it appears that the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner cannot afterwards avail himself of exceptions taken to the admission of such improper evidence before the trial.4 § 103. OF THE SUMMONING OF TALESMEN AS PETIT JURORS. At the common law, if by reason of challenges or the default of the jurors, a sufficient number cannot be had of the originał panel, a tales, a it was called, was awarded until the number of twelve was sworn.5 Our statute provides that when twenty-four jurors, duly drawn and summoned do not appear, or when, by reason of there being one or more jurors empaneled, or in consequence of jurors being set aside, or for any other reason, there shall not remain twentyfour ballots, containing the names of jurors then attending, the court shall order the sheriff to summon from the bystanders or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make at least twenty-four jurors, from which a jury for the trial of the indictment may be selected." The names of the persons so summoned by the sheriff, shall be written on distinct pieces of paper, and shall be rolled or folded each in the same manner as near as may be, and shall be deposited with the ballots remaining undrawn, if any there be, or in a sufficient box by themselves, if there be no undrawn ballots from which a jury shall be drawn.7 Peo. v. Knickerbocker, 1 Park., 302. * Idem. Peo. v. Knickerbocker, 1 Park., 302. 2 R. S., 734, § 3. 4 Blac. Com., 355. 7 Id., § 4. The above provision of the statute has been amended by further providing that the clerk may keep a box containing the names of all persons returned as jurors who may reside in the city or town where the court is directed to be held, and that when there shall be a deficiency in the number of jurors, the court may order the sheriff, in the presence of the court, to draw from such box as many persons as shall be sufficient, and as the court shall direct. The act further provides that the court may, by the consent of the parties, order the sheriff to summon from the bystanders or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make the full panel of jurors on the trial. The provisions of the above amendment do not apply to the city and county of New York, or to the county of Kings.1 And by subsequent legislation it is further provided that nothing in the above act is to be construed to repeal, or in any wise affect the former provisions of the statute in relation to the summoning of talesmen.2 When such a deficiency occurs in a criminal case, the number of additional persons to be summoned rests in the sound discretion of the court before which the indictment is pending.3 § 104. SWEARING THE JURORS. The jurors who are not challenged, or who having been challenged and tried are found indifferent, are then sworn by the clerk. In capital cases the names of the jurors are called separately by the clerk, and the following oath is administered to each of them: "You shall well and truly try and true deliverance make between the people of the State of New York and A B, the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence, so help you God." As each juror is named and before he is sworn, or rather before the oath or affirmation is tendered him, the challenge may be made as before mentioned. In cases of misdemeanors the jury are sworn at once, without administering the oath separately. The oath, in the last mentioned cases, is in the following form: 1 Laws 1861, ch. 210, p. 528. * Laws 1867, ch. 494, vol. 1, p. 1282; 2 R. S., 420, §§ 120, 121. Peo, v. Colt, 3 Hill, 432. "You shall well and truly try this issue of traverse between the people of the State of New York and A B, the defendant, and a true verdict give therein, according to the evidence, so help you God." In civil cases it is the practice to administer a general oath to the petit jurors at the opening of the court; but in criminal cases they are sworn in each case in which they are called.1 § 105. ORDERING WITNESSES TO WITHDRAW. Either party, immediately after the jury are empaneled, or indeed at any time during the trial, may apply to have the witnesses for the opposite party sent out of court, and the court may make an order accordingly.2 And if the witness do not withdraw when ordered, or afterwards return into court before he is called for, and is present during the examination of some other witness, it is discretionary with the judge whether he will allow him to be examined or not.3 The strict rule of practice has been said to be that the witnesses, on the part of the prisoner, should not be in court when those on the part of the State are examined; and in this State it has been held that when, on the trial of a capital case, several witnesses are to be examined to the same point, the court may, in its discretion, require all such witnesses, except the one under examination, to leave the room during such examination.5 The rule has also been laid down in this State that, in cases of misdemeanors, the court, at the request of the prosecutor or defendant, will direct the witnesses not under examination to be separated from those that are." The prosecution as well as the accused may demand the exclusion of witnesses from the court room during the trial, for the purpose of questioning each in the absence of others; and the granting or denying of such motion is left to the discretion of the presiding judge, and this discretion will not be interfered Vide 6 Wend., 550. 1 Arch. Cr. Pr., § 167. * Id.; Parker v. McWilliam, 6 Bing., 683; R. v. Coley, 1 Moody & M., State v. Tellers, 2 Halst., 220. Peo. v. Green, 1 Park., 11. • Peo. v. Duffy, 1 Whee. Cr. Cases, 123. Johnson v. The State, 14 Ga., 55. 329 |