James Cooley v. The State of Texas, 38 Tex. 636

Walker, J. This is a case in which arises on the bill of exceptions a question of great importance to the practice in the District Courts. Different judges appear to have adopted different practices in their districts touching the mode of impanneling juries, and we feel called on to state the rule which should be uniformly adopted. A party is not limited in the number of challenges he may make for cause.

The challenge may be made to the array propter defectum; from personal objections, such as alienage, infancy, or lack of statutory requirements; propter affectum, on account of bias or partiality; propter delictum, or because of crime, by which legal imcompetency has been incurred. A challenge to the array is not permitted to all the States of-this Union, but it is a practice known and recognized in this State. (See Van Hook v. The State, 12 Texas, 252.) Of course the right to challenge for cause is common to both parties, and the court must judge of the sufficiency of the cause assigned.

At common law it was usual to appoint triors for this purpose, but such is not the practice in most of the States. A peremptory challenge is one made for which no reason need be given, and must be allowed by the court. The number of these in trials for felonies at common law was fixed at thirty-five. (4 Black. Com., 354.) Challenges to the poll are such as are made to individual jurors, as distinguished from the array. The time to make a challenge is between the appearance and the swearing of the jurors. (8 Gratt. Va., 637; 3 Iowa, 216; 23 Penn. State, 12; 8 Gill.

Md., 487 ; 8 Blackford, 194; 3 Geo., 453 ; 1 Curt. C. C., 23.) It is a general rule at common law that no challenge can be made until the panel is full, and this rule should never be departed from; nor is it competent to challenge peremptorily more than one juror at the same time. (4 Barnwell & Aid., 476.) And should a party wish to make a challenge to the array when the panel is not full, he may pray a tales to complete the number, and then make his objection.

All challenges to the array must precede those made to the poll, and should a party make challenge to the poll, he will be held to have waived his right of challenge to .the array. (Coke’s Litt., 158 ; Bacon’s Abr., title Juries, Chap. 11; 6 Cal., 214.) A juror who has been unsuccess..fully challenged for cause may be peremptorily chal.lenged. • It is therefore obvious that all challenges for .cause should be exhausted before any peremptory challenge is made. (4 Blackstone Com., 356 ; 6 Tenn., 531; 4 Barn. & Aid., 476 ; 5 Cush.

Mass., 295.) A challenge ,to the array should be made in writing and submitted to .-the court, but those made to the poll are made verbally, usually by counsel, and the challenge should always be couched in polite and respectful language. It is competent under the practice of some of the States to plead an , abatement, the want of qualification on the part of individual jurors, or even a plea in abatement may be urged , against the array, but we believe such has not been the practice in this State.

The bill of exceptions taken in this case shows that .the court compelled the defendant’s counsel to make his peremptory challenges when the panel was not full, and . consequently there was no jury. Less than twelve men will not constitute a jury in a case such as the one at .bar. It may not be improper to illustrate how unjustly such ..a rule of practice might be made to operate. Suppose the prisoner’s counsel to have ten peremptory challenges; there are twelve men in the box, and he is compelled to ..go on and exhaust his challenges without having the panel refilled.

At the close there are but two of the original jurors in the box, but there are ten bystanders in the house with whom the sheriff fills the panel. Every one of these may be more obnoxious or unfriendly to the prisoner than any one of those his counsel has challenged. Now it does appear that a more complete method of packing a jury against the prisoner could scarcely be' adopted. But the rule may be made to work just as strongly against the State, and would be grossly erroneous in either case.

It is not an unknown practice in some of the districts for an attorney to make two or three or four peremptory ohallenges to individual jurors at the same time. This is wrong and should never be allowed. It is a practice certainly that no lawyer of any shrewdness would ever adopt unless compelled by the court. The proper mode of selecting a jury is to proceed by trial or examination of the jurors until twelve are found against whom there is no legal disqualification. Then the party holding the affirmative of the.issue to be tried should be invited by the court to look upon the jury.

Should he pass upon the jury without challenge, the party holding the negative of the issue is then called to pass upon the jury. Should he make no peremptory challenge, the jury is then sworn. But should either party make a peremptory challenge another juror must immediately be called, and if he prove a competent and qualified juror he takes his seat in the box; if not, another is called, and so on until the panel is again full; then the peremptory challenging may proceed.

The bill of exceptions in this case shows that' the rules, as herein laid down, were violated, and it may have been to the prejudice of the appellant. There is no objection to the manner in which the court charged the jury. The charges refused, so far as the law required they should have been given, were given in the body of the charge as given by the court. The judgment of the District Court in this case must be reversed and the cause remanded. Reversed and remanded.