Causes of challenge of jurors, etc.

charged, or to the person on whose complaint the prosecution was instituted, or to the defendant.

5. That he has served on a petit jury which was sworn in the same cause against the same defendant, and which jury was discharged after hearing the evidence, or rendered a verdict which was set aside.

6. That he served as a juror in a civil case brought against the defendant for the same act.

7. That he has been, in good faith, subpenaed as a witness in the case.

8. That he is an habitual drunkard.

9. The same challenges shall be allowed in criminal prosecutions that are allowed to parties in civil cases. (Sayler, chap. 2130.)

Capital punishment; opposition to-Where, on a trial for murder in the first degree, a juror states that he is on principle opposed to capital punishment, and that he believes that his opinion will influence his decision against the law and the evidence, he may be challenged by the state for cause. (Martin v. State, 16 Ohio, 364.)

Cause of challenge; waiver of-As a general rule, a party failing to make inquiry as to the competency of a juror at the time he is impaneled, will be held to have waived all objection to his competency; and it is not enough, in order to take the case out of this general rule, for the party to show simply that at the time of impaneling the juror he was ignorant of the fact of his incompetency, or believed him to be competent; and the rule applics as well to jurors summoned upon special venire as to jurors drawn from the box. (Kenrick v. Reppard, 23 Ohio St. 333.)

Expressed opinion; evidence of, on motion for new trial.—When a new trial is asked on the alleged ground that one of the jurors had previously expressed his opinion as to the prisoner's guilt, the overruling of such motion will not be held erroneous, if the evidence of the fact of such expression of opinion is conflicting, or there is testimony tending to disprove it. (Blackburn v. State, 23 Ohio St. 146.)

Formed and expressed opinion; construction of section as to. Where a person called as a juror in a criminal case is challenged on the ground that he has formed or expressed an opinion as to the guilt or innocence of the accused, if it shall appear that such opinion was formed upon reading what purported to be a report

Challenges for cause, etc.

of the testimony of witnesses of the transaction, he is net competent to serve as a juror in the case, and should be set aside by the court. But if such opinion "shall appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify," the person so challenged may be admitted to serve as a juror, if he shall state, "on oath, that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence," and the court is satisfied that the juror is impartial and will render an impartial verdict in the case. (Frazier v. State, 23 Ohio St. 551.)

Grand juror summoned as petit juror; when challenge must be made. A challenge for cause to a juror, that he was a member of the grand jury which found the indictment, can be made only before the jury is sworn. Where no inquiry is made on the subject till after the verdict, the existence of such cause for challenge, though previously unknown to the defendant and his counsel, will not necessarily entitle him to a new trial. (Beck v. State, 20 Ohio St. 228.)

Hypothetical opinion. The expression by a juror, before the trial, of a hypothetical opinion, as to the guilt or innocence of the accused, dependent upon a particular state of facts as to the existence of which no opinion was given, does not constitute a sufficient ground for a new trial in a criminal case. (Loeffner v. State, 10 Ohio St. 598.)

SEC. 13. Challenges for cause-when made, and to be tried by the court. All challenges for cause shall be tried by the court, on the oath of the person challenged, or on other evidence, and shall be made before the jury is sworn. (Sayler, 2159, $ 135.)

Challenge for cause by defendant overruled; juror peremptorily challenged by state; not error.—A person summoned as a juror for the trial of a criminal case was challenged for cause by the defendant, and the challenge was overruled; whereupon, he was peremptorily challenged on behalf of the state, and excluded from the panel: Held, that the overruling of the defendant's challenge could not have prejudiced him, and is, therefore, no sufficient ground for reversal of the judgment. (Griffin v. State, 18 Ohio St. 438.)

Challenge for cause by defendant overruled; peremptory challenges

Each defendant to be allowed peremptory challenges, etc.

of defendant not exhausted; no error.-Where, on the trial of a criminal cause, a juror is challenged by the defendant for cause, and the challenge is improperly refused, but such juror is afterward excused on a peremptory challenge, the judgment will not be reversed for such error, if an acceptable jury be impaneled before the defendant has exhausted his right to peremptory challenges. (Erwin v. State, 29 Ohio St. 186; Mimms v. State, 16 Ohio St. 221.)

SEC. 14. Each defendant to be allowed peremptory challenges. If two or more persons be put on trial at the same time, each must be allowed his separate peremptory challenges. (Sayler, 2159, § 136.)

SEC. 15. Form of oath to jury. When all challenges have been made, the following oath shall be administered: "You shall well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar [giving his name]: so help you God." (Sayler, 2160, § 137.)

SEC. 16. Affirmation. A juror shall be allowed to make affirmation; and the words "this you do as you shall answer under the pains and penalties of perjury," shall be substituted instead of the words "so help you God." (Sayler, 2160, § 138.)

Jury not properly sworn; objection, when considered.—An objection that the jury was not properly sworn can not be considered on error, unless the bill of exceptions shows the form of the oath that was actually administered. (Bartlett v. State, 28 Ohio St. 669.)

Swearing jury, record of.-Where the statute required the oath to be administered to the jury in the following form: "You shall well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar [giving his name], so help you God," and the record shows that "the jury were sworn to well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar," it will be presumed that the statutory form was observed in administering the oath. (Wareham v. State, 25 Ohio St. 601.)

EVIDENCE.

SEC. 17. Court may order view of place. Whenever, in the opinion of the court, it is proper for the jurors to have a view of the place at which any material fact occurred, it may order them to be conducted in a body, under the charge of the

Who competent to testify.

sheriff, to the place, which shall be shown to them by some person appointed by the court. While the jurors are thus absent, no person other than the sheriff having them in charge, and the person appointed to show them the place, shall speak to them on any subject connected with the trial. (Sayler, 2189, § 206.)

ENTRY-ORDER FOR JURY TO VIEW PLACE, ETC.

[Title.] Indictment for

It being proper, in the opinion of the court, for the jury to have a view of the place in which [any material fact] occurred, it is ordered that said jury be conducted in a body, under the charge of the sheriff, to the said place; and that the same be shown to them by F. G. And that they return to-morrow morning at 10 o'clock.

SEC. 18. Who competent to testify. No person shall be disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility. (Sayler, 2160, § 139.)

Accomplice; separate trials; each competent.-Where separate trials are awarded to parties jointly indicted, each is a competent witness against the other. (Brown v. State, 18 Ohio St. 496.)

Conviction must be shown.-Evidence can not be given to prove an infamous crime of which a witness has not been convicted, to impeach his credit. (Webb v. State, 29 Ohio St. 351.)

"Conviction;" what conviction can be shown.-A conviction which may be shown to affect the credibility of a witness, under this section, is such only as, independent of the section, would have rendered the convict incompetent to testify. (Cobb v. State, Supreme Court, Oct. 30, 1877.)

Husband and wife, not competent.-Husband and wife are not competent witnesses for or against each other in criminal prosecutions. Neither section 18 of this chapter, nor the 310th and following sections of the code of civil procedure, render them competent in criminal cases. (Steen v. State, 20 Ohio St. 333.)

Violation of city ordinance; conviction for, can not be shown to affect credibility of witness.-The credibility of a witness can not be

Witness must disclose his connection, etc.

affected by showing his former conviction of an offense under a city ordinance against disorderly conduct. (Cobb v. State, Supreme Court, Oct. 30, 1877.)

SEC. 19. Witness must disclose his connection with certain offenses. If any person called to testify on behalf of the state, before any justice of the peace, grand jury, or court, upon any complaint, information, or indictment, for any offense defined in sections four, five, six, seven, eight, nine, ten, or eleven of chapter eight, title one, part four, disclose any fact tending to criminate himself in any matter made punishable by said sections, he shall thereafter be discharged from all liability to prosecution or punishment for such matter of offense; and a person to whom intoxicating liquor was sold in violation of law shall be a competent witness to prove such fact, or any other tending thereto. (S. & C. 1435; Sayler, 2190, § 207.)

SEC. 20. The defendant may testify. On the trial of all indictments, complaints, and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, but not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment upon such neglect or refusal. (Sayler, 2162, § 140.)

Refusal of accused to testify; reference to, in argument.-Where a defendant, on trial under indictment for crime, forbears to testify as a witness in his own behalf, and the evidence having been closed, and the counsel for the state being engaged in the argument of the case to the jury upon what he claimed to be matter of fact, interrupts the counsel by a contradictory statement of fact, in the hearing of the jury, and the counsel thereupon says to the defendant," You had an opportunity to testify in this case, and did not do so," and it not appearing that the court was in any way derelict in duty in the premises, such occurrence does not constitute good cause for the granting of a new trial. (Calkins v. State, 18 Ohio St. 366.)