by whom paid. The clerk of the court to which the the prisoner: change is granted, has power to take hew, 47-112, 120. recognizance for the appearance of The State v. Merri SEC. 4381. In all changes of venue under the provisions of Cost of change: this chapter, the county from which the change of venue was taken shall pay the expenses and charges of removing, delivering, and keeping the defendant, and all other expenses necessary consequent upon such change of venue and the trial of such defendant, which shall be audited and allowed by the court try.ng such case. Sheriff's fees. District judge may transfer prosecutions ty to another. R. 24742. and SEC. 4382. Sheriffs, for delivering prisoners under the provisions of this chapter, are entitled to the same fees therefor as are allowed for the conveyance of convicts to the penitentiary. SEC. 4383. When any district judge in this state is satisfied from his own knowledge or otherwise, that any organized county in his district does not contain a sufficient number of inhabitants from one coun- possessing the qualifications of jurors to compose grand and trial jurors for the presentment and trial of any person or persons charged with the commission of an offense in said county requiring the intervention of a grand jury, said judge shall make an order transferring all prosecutions for such offenses committed in said county to the next nearest county in the same judicial district possessing the requisite number of inhabitants qualified to serve as jurors. Order may be made in vacation. R. 4743. SEC. 4384. Said order may be made by the judge in vacation, or by the court, and the district court of the county to which said prosecution may be transferred, shall have full and complete jurisdiction of the offense, and the person or persons charged with committing the offense may be indicted and tried in the county to which the prosecution is so transferred, in the same manner as though the offense had been committed in said county. SEC. 4385. When any prosecution has been transferred by the Person charged court or judge under the provisions of this chapter, the person required to ap charged with committing the offense shall be required to appear pear and give bond. at the next succeeding term of the district court of the county to R. 4744. which the prosecution is transferred, and shall give bond accordingly, and the court or judge may require all material witnesses in behalf of the prosecution to enter into cognizance for their appearance at the district court of the county to which the prose Costs. R. 2 4745. cution is transferred. The form of bond required under this section is substantially the same as that prescribed by § 4585: The State v. Merrihew, 47–112, 119. The requirement that in case of a change of venue the accused shall give a new bond to appear, etc., is directory, and does not operate to release the sureties on the original bail bond, who are still responsible for his appearance: The State v. Brown, 16-314. SEC. 4386. The county in which the offense was committed, and from which the prosecution was transferred, shall pay all the costs attending the prosecution. SEC. 4387. No appeal or writ of error shall lie from any order No appeal from for the transfer of prosecutions made under the provisions of this order. R. & 4746. This chapter: chapter. SEC. 4388. The provisions of this chapter apply to prosecuto what appli- tions or charges now pending, or that may hereafter be instituted cable. R. 24747. for offenses heretofore or hereafter committed. CHAPTER 25.. OF THE FORMATION OF TRIAL JURY. SECTION 4389. The jury for the trial of criminal actions is How formed. selected, drawn, and summoned as provided in the code of civil R. 4751. practice. SEC. 4390. At the opening of the court, the clerk shall prepare Ballots preseparate ballots, containing the names of the persons returned as k.24752 pared by clerk. jurors, which shall be folded each in the same manner, as near as C. '51, ¿ 2.61. may be, and so that the name thereon shall not be visible, and must deposit them in a box to be kept for that purpose. These provisions are directory, and | tion, refused to require the instructions a failure of the clerk to comply with to be carried out, or unless it is otherthem will not amount to error suffi- wis shown that some substantial cient to reverse a judgment, unless it prejudice has resulted to defendant: be shown that the court, on applica- The State v. Glick, 7–287. SEC. 4391. When the indictment is called for trial and before Party may redrawing the jury, either party may require the names of all the quire names of jurors in the panel to be called, and that an attachment issue R. 24753, against those who are absent, but the court may, in its discretion, C. 51, 265. wait or not for the return of the attachment. jurors called. R. 4754. SEC. 4392. Before the name of any juror is drawn the box Drawingjurors. must be closed and shaken, so as to intermingle the ballots therein, C. 51,2966. and the clerk shall draw such ballots without seeing the names written on them, from the box, through the top or lid thereof. ballots. SEC. 4393. When the jury is completed, the ballots containing Disposition of the names of the jurors sworn must be laid aside and kept apart R. 24755. from the ballots containing the names of the other jurors, until C. 51, § 2967. the jury so sworn is discharged. R. 4756. SEC. 4394. After the jury is so discharged, the ballots con- Same. taining their names must be again folded and returned to the box, C. 51, 2 2968. and so on, as often as a trial is had. R. 2 4757. SEC. 4395. If a juror be absent when his name is drawn or be Juror absent. set aside or excused from serving on that trial, the ballot con- C. '51, 2 2969. taining his name must be folded and returned to the box as soon as the jury is sworn. SEC. 4396. If by reason of there being one or more juries Talesmen. empaneled, or for any other reason, there should not remain R. 24758. any C. '51, 2970. ballots undrawn, or if in consequence of jurors being set aside no jury can be obtained from the list of those returned by the sheriff for the trial of issues, the court may order the sheriff, or if he be a party to or interested in the cause, some other person, to summon jurors from the bystanders, or other persons, who shall be returned for the trial of the indictment. When special jurors are summoned on a spec al venire, to fill up a jury for the trial of a particular case, it is not error to call them successively in the order in which they are summoned, but it is better to place their names on ballots and draw as in selecting regular jurors, and this is the proper practice when they are sum- The disqualifying interest of the SEC. 4397. The jury consists of twelve men accepted and Jury: consists Sworn to try the issue, The right to trial by jury of twelve court and state, a trial is had by a men may be waived, a d if by con- less number, the verdict will be bindsent of defendant, as well as of the ling: The State v. Kaufman, 51–578. Challenge. C. 31, 2972. No severance of. R. 2 4761. C. '51.2973. To panel. R. 4762. C. 51, 2974. CHAPTER 26. OF CHALLENGING THE JURY. SECTION 4398. A challenge is an objection made to the trial jurors, and is of two kinds: 1. To the panel; 2. To an individual juror. SEC. 4399. When several defendants are tried together, they are not allowed to sever their challenges, but must join therein. SEC. 4400. A challenge to the panel can be interposed only on the ground that they were not selected, drawn, or summoned as prescribed by law. It is not a ground for a challenge | inquiry, under § 4620, as to the pristo the panel that the jurors may have oner's sanity: The State v. Arnold, heard the evidence in a preliminary | 12-479. SEC. 4401. A challenge to the panel must be taken before a When and how challenge to any individual juror, and must be in writing, specifying distinctly and plainly the facts constituting the ground of challenge. taken. R. 24763. C. '51, 2975. lenge. SEC. 4402. A challenge to the panel may be taken by either Trial of chal- party, and upon the trial thereof the officers, whether judicial or ministerial, 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. R 4764. C. '51, 2976. Challenge allowed: jury discharged. R. 24765. C. 51, 2977. To individual juror. R. 4766. C. 51,2978. For cause. R. 224767-71. SEC. 4403. If the facts of the challenge be allowed by the court, the jury must be discharged so far as the trial of the indictment in question is concerned. If it be disallowed, the court shall direct the jury to be empaneled. SEC. 4404. A challenge to an individual juror may be taken orally, and is either: 1. For cause; 2. Peremptory. SEC. 4405. A challenge for cause may be made, either by the state or by the defendant; it must distinctly specify the facts con C. 51, 222982-6. stituting the causes of challenge, and may be made for any of the following causes: 1. A previous conviction of the juror of a felony; 2. A want of any of the qualifications prescribed by statute to render a person a competent juror; 3. Unsoundness of mind, or such defects in the faculties of the mind or the organs of the body, as render him incapable of performing the dutics of a juror; 4. Affinity or consanguinity, within the ninth degree, to the person alleged to be injured by the offense charged, or on whose preliminary information, or at whose instance the prosecution was instituted, or to the defendant, to be computed according to the rule of the civil law; 5. 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 preliminary information, or at whose instance the prosecution was instituted, or in his employ on wages; 6. Being a party adverse to the defendant in a civil action, or having been the prosecutor against, or accused by him, in a criminal prosecution; 7. 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 indictment; 8. Having served on a trial jury, which has tried another defendant for the offense charged in the indictment; 9. Having been on a jury formerly sworn to try the same indictment and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it; 10. Having served as a juror, in a civil action brought against the defendant, for the act charged as an offense; 11. Having formed or expressed such an opinion as to the guilt or innocence of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial; 12. Because of his being bail for any defendant in the indictment; 13. Because he is defendant in a similar indictment, or com plainant or private prosecutor against the defendant or any other person indicted for a similar offense; 14. Because he is, or, within a year preceding, has been engaged or interested in carrying on any business, calling, or employment, the carrying on of which is a violation of law, and when the defendant is indicted for a like offense. 15. Because he has been a witness, either for or against the defendant, on the preliminary trial or before the grand jury. [The word "indicted" in the last line of 13 is not in the original, but is retained as in the printed code as having probably been inserted by the editor.] The fact that a juror is a resident | trial, and not to cases where two of the city does not disqualify him to sit on a jury for the trial of a person for violation of a city ordinance: The State v. Wells, 46-662. While an objection to the competency of a juror should be interposed by the defendant at the time the jury is sworn, if then known to him, yet, if not then known, it may be interposed by motion for new trial: The State v. Groome, 10-308. The provision of 8 evidently refers to cases when two or more have been jointly indicted for the same offense, and have severed in their defendants are separately indicted, although the offenses may be of the same kind: The State v. Sheeley, 15-405; The State v. Leicht, 17-28. Having formed a hypothetical opinion, based upon rumors, but which would not prevent the juror from rendering a true verdict upon the evidence, will not disqualify him: The State v. Ostrander, 18-435, 451. Where a juror stated that he had not formed an unqualified opinion, that if what he had heard should be proved, he had an opinion made up, but that he thought he had no pre Exemption. C. 31, 2987. Juror R. examined. 4773. C. '51, 2988. judice and bias, etc. held, that he was Where a juror stated that he had lenge for cause: The State v. Bruce, 48-530; and to the same effect, see The State v. Bryan, 40-379; The State v. Lawrence, 38-51. It is an opinion as to the guilt or innocenc of the prisoner, only, which will disqualify a jaror. Having formed and expressed an opinion as to the killing is not sufficient: The State v. Thompson, 9-188. The juror having testified that he has formed and expressed an unqualified opinion, etc., should not be required to state whether it is for or against the prisoner in order to ren der him subject to challenge for cause: The State r. Shelledy, 8-477. SEC. 4406. An exemption from service on a jury is not a causo of challenge, but the privilege of the person exempted. Sec. 2777 is identical with this sec- tion. SEC. 4407. 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, but his answers shall not afterwards be testimony against him. It is not proper for counsel to ask | supposel defense: The State v. Ara juror whether he has formed or ex-nold, 12-479. pressed any opinion as to a certain SEC. 4408. Other witnesses may also be examined on either Other witness side; and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony on the trial of the challenge. es examined. R. 4774. C. 51, 22989. Court shall determine. R. & 4775. C. 51, 2990. SEC. 4409. In all challenges the court shall determine the law and the fact, and must either allow or disallow the challenge. SEC. 4410. The state shall first complete its challenges for Challenges by cause, and the defendant afterwards. state. Peremptory R. & 4777. Same. C. '51, 2980. Same. 21. SEC. 4411. After twelve jurors have been obtained, against whom no cause of challenge has been found to exist, peremptory challenges may be made. SEC. 4412. A peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court must exclude him. SEC. 4413. If the offense charged in the indictment is punishable with imprisonment in the penitentiary for life, or may be so 10 G. A. ch. 10, punishable in the discretion of the court, the state is entitled to ten peremptory challenges and the defendant twenty; if any other felony, the state is entitled to six and the defendant to twelve; and if a misdemeanor, the state to three and the defendant to six challenges. lenge. Same. દે 2. SEC. 4414. The state shall be entitled to the first challenge Order of chal- and shall challenge one juror; the defendant shall be entitled to the second challenge, and shall challenge two jurors; the state shall be entitled to the third challenge, and shall challenge one juror; the defendant shall be entitled to the fourth challenge, and shall challenge two jurors; and so on, alternately, until all the challenges are exhausted. See § 2771, and note. |
