W. T. Waggoner v. M. Dodson et al., 96 Tex. 6

MAJORITY OPINION. "Stephens, Associate Justice. [After stating the facts.]—At common law peremptory challenges were not allowed in civil cases at all, and in Criminal cases the right was confined to the main issue and did not extend to the trial of collateral issues. 1 Thomp. on Trials, see. 43, 44, 46; Proffatt on Jury Trials, secs. 163, 163; 4 Blackst., 353, 396; Freeman v. People, 4 Denio (N. Y.), 1; Livermore v. Hamilton, 39 N. Y., 107; Brooks v. Commonwealth, 3 Rob. (Va.), 845.

Unless, therefore, the right is given by statute it does not exist; from which it results that if a case arises to which a statute on the'subject is not applicable, it must be treated as casus omissus. Our statute gives each party to a civil suit in the district court six péremptory challenges and no more, and, in "line with the construction uniformly given similar statutes elsewhere, the word ‘party’ has been construed to include the several plaintiffs or defendants and does not mean person.

Where, however, distinct causes of action against different defendants are tried together, such joinder by’consolidation or otherwise does not deprive either of them, without his consent, of the right of peremptory challenge to ' which he would have been entitled had the causes been separately tried. Railway v. Stell, 61 S. W. Rep., 980; Insurance Co. v. Hillmon, 145 U. S., 385. The same ruling has been made where the defendants interpose distinct and antagonistic defenses to the plaintiff’s cause of action. Rogers v. Armstrong, 30 S. W. Rep., 848.

It has even been suggested that where several defendants can' not agree among themselves as to the division of the challenges to which they may together be entitled the court should give each an equal number, though we hardly see how this could well be done in the county court, where only three peremptory challenges are allowed. Bruce v. Bank, 60 S. W. Rep., 1006 and cases cited.

But we know of no case in which it has been held that several defendants making a common fight against the plaintiff on the main-issue in the case, as in this instance, were entitled to double the number of peremptory challenges allowed the plaintiff. Here the issue between the defendants was secondary and collateral merely, and the plaintiff had no interest in it. Little or no importance was attached to it on the trial. Its solution did not depend upon conflicting evidence, as did the issues between the plaintiff and the defendants.

It would not do to hold that the Legislature in giving to each opposing party to a suit six peremptory challenges meant to place the plaintiff at such a disadvantage in the selection of the jury to try the main issue. A more reasonable and better view would be that the Legislature either overlooked such cases and thus failed to provide for them, or else deemed them too exceptional to require treatment. “The defendants demanded a right to which they were not entitled, and for the unfair advantage thus gained must submit to a reversal of the judgment. Mr.- Thompson says in his work on Trials, volume 1,

section 44, speaking of the rule at common-law, in criminal cases, that if the accused ‘challenged a greater number than that allowed the barbarism of that law pronounced death in cases of treason, and, in cases of felony or petit treason, subjected him to peine forte et dure, that is, pressing to death, though sometimes he was mercifully hanged.’ Of course no such harsh consequences ever attended the wrongful exercise oí the right of peremptory challenge in civil cases, but the quotation serves to repel the suggestion of harmless error.

In one case decided by our Supreme Court, and referred to with approval in other cases, it was held that the mere denial of the right of peremptory challenge did not require the judgment to be reversed where the bill of exceptions failed to show that the party complaining wanted to use it to get rid of an objectionable juror. Snow v. Starr, 75 Texas, 411. On the contrary, it is held in the Supreme Court of the United States that ‘the denial of the right of challenge, secured to defendants by statute, entitles them to a new trial.’ Insurance Co. v. Hillmon, 145 U. S., 285.

And so in Supreme Court of Massachusetts, Sackett v. Ruder, 9 Law. Rep. Ann., 391. But be the rule as it may where the right to challenge is denied, the judgment in Hargrave v. Vaughn, 82 Texas, 347, was reversed because the defendants peremptorily challenged more jurors than they were entitled to, and so far as we can see this case is authority directly in point. A like ruling was made by the Supreme Court of Tennessee in Foutch v. State, 45 Southwestern Reporter, 678, in which case the State was allowed six peremptory challenges by the trial court when the law allowed only four.

Say the Supreme Court in reviewing this action: ‘The allowance of this excess to the State was an error against the defendant for which the judgment must be reversed.’ “As is well known to the practitioner, upon the selection of the jury often depends the result of the issue, and nothing so affects this selection as the manner in which the right of peremptory challenge is exercised. It needs no argument to prove that it is unfair to allow- one party to a civil suit twice as many challenges as his adversary, and it is next to impossible to prove what effect such unfair advantage may have in a particular case.

Injury is probable, and should therefore be inferred unless the contrary appears. The Constitution guarantees the right of trial by jury, which means a fair and impartial trial, that is, as interpreted by the Legislature, a trial in which each party is allowed the same number of peremptory challenges. “In addition, while the bill of exceptions might have contained more, the explanation of the judge tends to refute the suggestion that th'e ruling complained of was not considered harmful, and appellees do not undertake to defend it on that ground in this court.

The record does show that appellant was a nonresident, and that the several appellees who defended the suit were residents of the county and some of them of the town in which it was tried, and the bill of exceptions shows that appellant insisted at the time. that the jury would be selected from the town as a result of the ruling, and this does not seem to have been questioned either in the trial court or in this court. “The judgment is therefore reversed and the cause remanded for a new trial.”