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ment, or for a new trial, afterwards. That Love being a foreigner, was a very good ground of challenge, had the prisoner known of it; but being ignorant of that circumstance, he permitted him to be sworn as a juryman.

The common law requires that twelve men at least shall find a bill against a man, and twelve more must find him guilty, before his life can be put in jeopardy. These jurors should be omni exceptione majores; not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum. They should be liberos et legales, et legales homines de viceneto.

In the present case, however, it was said, there were not twelve good and lawful men who passed on his trial, only eleven; so that this was not a conviction according to the common law of the land.

The Attorney-General, in reply. This is rather an objection of a formal, than of a substantial nature. That new trials were very often discretionary in the court, and unless they were convinced that justice had not been done, they would not grant a new trial. That the present objection was in nature of a challenge to a juror, which might have been good before trial, but now too late after trial. That it is laid down in a great number of cases, that a juror cannot be challenged after he is sworn, unless it be for some cause after he is sworn. 2 Hawk. 412. 4 Black. 346. That this point had been determined in a case tried at Georgetown, and afterwards taken up to the court of appeals at Columbia, where an alien sat upon the trial, which was unknown to the defendant at the time of trial. This was made the ground of a motion for a new trial; but the judges, after argument, refused it, as it was too late after trial to take exception to a juror, which might have been excepted to at the time of trial. That it was almost impossible for the sheriff of any district, unless he was to turn inquisitor, to tell the difference between an English alien and a citizen; the manners, language and cast of features were the same. Aliens are obli

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State

V.

Quarrel.

ged to serve in the militia after a residence of six months, and they pay taxes, and all the jury lists in the state are made out from the returns of the tax-collectors. No blame or censure, therefore, could attach to the officers of the court, for returning an alien on a panel, as they were put into and drawn out of a jury box in the same manner as citizens, the law having made no provision to distinguish them. And indeed there does not exist the same reason for challenging them, as there does for challenging other foreigners, for the laws of both countries are exactly the same, so that the objection is more in name and in idea than in reason or justice. And for the same reason it is clear law, that if an alien is to be tried, and a common jury is summoned, and he does not object before trial, he shall not be allowed it afterwards. 2 Hawk. 420. But if he allege that he is an alien, a venire de medietate linguæ shall issue. That Pub. Laws, by the 43d clause of the jury law, passed in 1731, every prisoner in this state is entitled to a copy of the indictment found against him, with a copy of the panel of the jury, three full days before the trial, that he may know the jurors who are to pass upon his trial, as well as the names of those who found the bill against him. This privilege is allowed in favorum vitæ, and in order that every prisoner, whose life is in jeopardy, may have a fair opportunity of taking every exception which the law allows in his favour. And if he will not avail himself of these privileges and advantages before trial, it is his own fault; he cannot do so afterwards. It would, indeed, be trifling with the justice of the country, if, after all the solemnities of law, and trouble of examining witnesses, and the pains taken to come at the substantial justice of the case, such an exception as the present one was allowed to set afloat all the proceedings attending the prisoner's conviction.

p. 150.

The Judges, after hearing the arguments, did not think themselves justifiable in ordering a new trial, as it was too late after verdict. That the prisoner was reminded of this

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right of objection to every juryman, by the clerk, as he was
called up to be sworn; and after objecting to a number, he
permitted Mr. Love to be sworn, so that he may be said to
have been a juror of his own choice. Besides, he had a
right to a copy of his indictment, and the panel of the jury,
three whole days before his trial; one of the ends and de-
signs of this indulgence was, that a prisoner might inquire
into the character and qualifications of every juror who
might pass upon his trial, and if he did not do so, it was his
own fault.
The court will not now permit him to take ad-
vantage of his own negligence."

State

V.

Quarrel.

Motion for new trial overruled, and rule discharged.

The presiding judge then passed sentence of death on the prisoner, but he was afterwards pardoned by the governor.

Present, BURKE, GRIMKE, WATIES and BAY.

THE STATE against MATTHEW O'DRIS

COLL.

THE STATE
against
The Same.

MISDEMEANOR in sending a
challenge to Colonel Fishburn.

MISDEMEANOR for a libel in
posting him for not accepting
the challenge.

Motion for a new trial in each of the above cases.

of

The defendant had been convicted on both of the above indictments, at the instance of the prosecutor, who did not

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State

V.

conceive himself in honour bound to accept of the challenge,

O'Driscoll for reasons which were very satisfactory to the court and

jury, before whom the cases were tried.

The ground of the motion in both cases was, that a Mr. Knight, who had been drawn as a talesman, and who had taken his seat as a juryman on the trial, had at a former court served as a grand juryman, and was one who found the bill against the defendant.

In support of these motions, the same grounds were taken which had been urged in Quarrel's case, that on every criminal trial and conviction, there should be twenty-four good and lawful men; twelve at least to find the bill, and twelve more to try the case; but that there were only eleven good and lawful men sworn upon the trial of these misdemeanors, which convictions were not agreeable to the rules of the common law, inasmuch as a juror who found the bill was incompetent to sit and try the issue; for, it was urged, that if any one of the twelve who found the bill might sit upon the trial, the whole twelve might; and so it might happen, that a man might be held to answer in a criminal court of justice in the first instance, and tried by the same men afterwards, which would be inconsistent with the common law principles of criminal justice, as a man in that case would be tried by his accusers, it being a well known maxim that the finding of the grand jury amounts to no more in law than to a legal

accusation.

To this it was replied, that the decision in Quarrel's case was an answer to the objections in the present cases, because the defendant here had a good cause of challenge in his hand, and after reading the names of the grand jurors in the bill of indictment, if he did not make the objection, it was his own fault; it was too late after trial and conviction. It was compared to a motion for a new trial, on the ground of discovering evidence after a trial, which, by due diligence might have been produced at the trial; in which case it

was urged the court never would grant a new trial, or suffer a man to take advantage of his own negligence, or make that a ground for another trial.

The Court was against the new trials in these cases. They said the principles laid down in the Georgetown case, and Quarrel's, had settled these; there was no substantial difference between them. In the two former cases, the jurors were aliens; which formed a good cause of challenge in each case; but as the challenges were not made before trial, they held it too late afterwards. So in the present case, the sitting on the grand jury which found the bill was a good ground of challenge in these cases; but as the defendant sat by, with the indictment before him, and suffered the cases to proceed, and go to the jury without making any objection to Mr. Knight, when the law put it in his power and afforded him the opportunity, it is too late for him now to take advantage of it. They admitted, that the rules of common law were not lightly to be overlooked, but that diligence was the life of the law, vigilanti, non dormienti, jura subveniunt, and when a man himself waived a privilege which he could not take advantage of, it was not for the courts of justice to aid such negligence, by giving him another opportunity of availing himself of it.

The rules for new trials were discharged. The court then proceeded to sentence the defendant to two months' imprisonment, and to pay a fine of 50%. sterling, and to give security for his good behaviour, and particularly towards the prosecutor, for the space of two years.

Present, BURKE, GRIMKE, WATIES and BAY.

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