It is the duty of the Court to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection." They say here—and it is answered in none of the opinions favoring the liberal rule— that it is the duty of the State to furnish a legal tribunal, and this means qualified jurors. In 1873 Judge Cooley supported the case strongly, while limiting the rule to cases of felony, and refusing to apply it in a civil case. Johr v. People, 26 Mich., 427

(1873).

The case of Guykowski v. People, 2 Ill., 476, while being practically overruled in the later case of Chase v. People, 40 Ill., 352, contains reasons for the strict rule which the later case did not attempt to answer. It is said in this case: "Accused in capital case stands on all his rights, and waives nothing that is irregular." A juror “cannot be rendered competent to serve by the presumed assent of the accused because the law has not admitted him to act in such capacity. It may also be fairly presumed that it is incumbent on the prosecution to take care that the jurors were competent and legally qualified. The verdict is a nullity, not having been obtained as the law required." The Indiana Court in Rice v. State, 16 Ind., 298, takes the same view. "An accused person

has a right to presume that the jurors called to try him are competent, and he need not anticipate possible objections unless he has notice that they exist or some reason to suppose that they exist. He is guilty of no negligence in relying upon the statements of the juror and trusting to the state to put him on trial before an impartial and competent jury."

While probably the weight of authority, taking all classes of cases together, is in favor of the principal case, and it has "convenience" on its side, it is believed that the strict rule as applied to capital cases, when the defendant has not been negligent, and has not learned of the positive statutory disqualification of a juror until after verdict, has reason and justice in its favor, and is supported by creditable authority.

LIABILITY OF INSURER WHEN INSURED IS EXECUTED FOR A CRIME.

The authorities are not uniform as to the liability of the insurer in the event of the death of the insured in consequence of the

known violation of the law when the life insurance policy contains no clause exempting the insurer from such liability. Vance on Insurance, Sec. 200, states that "Most policies of insurance contain a clause exempting the insurer from liability for the death of the insured in consequence of the known violation of the law or at the hands of justice." Of course, no question arises when the policy

contains such a clause.

In the recent case of Northwestern Ins. Co. v. McCue, 223 U. S., 234, the life insurance policy did not contain any clause exempting the company from liability under such circumstances, and it was held that death at the hands of the law in execution of a conviction and sentence for murder was not covered by a policy of life insurance, though such manner of death was not excepted from the policy, there being no question of the justice of the sen

tence.

The decision in the principal case is in accordance with the judgment rendered in Burt v. Union Central Life Ins. Co., 187 U. S., 362. The decision of the Federal Court was not based upon the theory that the question as to the guilt of insured was res adjudicata, but said that to hold otherwise would be against public policy. The Court in construing the contract states that the policy did not insure against his legal execution, and if death. was the result of a legal execution, then the condition in the policy of natural death, upon which it was to become payable, had not occurred. The Alabama Court in Supreme Commandery K. of G. v. Ainsworth, 71 Ala., 436, declared that risk is the material element of the contract of life insurance, and that "it cannot be in the contemplation of the parties that the assured by his own criminal act shall deprive the contract of its material element; shal! vary and enlarge the risk, and hasten the day of payment of the insurance money." Accordingly in that case suicide was implied as an exception to the liability of the insurer. Upon the same ground of reasoning, McKenna, J., delivering the opinion in the principal case, said that the interest of the insured in the company was fixed by the amount of his insurance. Continuing the argument the learned judge observed, "But what constitutes his title or right? Necessarily his policy. What entitles him to a realization of the benefits of his membership? Necessarily, again, his policy, if the manner of his death be not a violation of it."

The English court in Amicable Society v. Bolland, decided by the House of Lords in 1830, and reported in 4 Bligh's N. R. 194, enunciates the doctrine laid down in the principal case. In that case one Fountleroy insured his life with the Amicable Insurance Society and soon afterwards committed a forgery on the Bank of England. For nine years he continued to pay the premiums, but was finally apprehended and declared a bankrupt, respondents being his assignees. The question presented to the Court was whether the assignees could recover under the circumstances. The Court declared that no liability rested upon the insurer. The Lord Chancellor said that if the policy itself had stated "that in the event of his committing a capital felony, and being tried, convicted and executed for that felony, the assignees shall receive a certain sum of money," such stipulation would be absolutely void upon "the plainest principles of public policy." Such a provision, if valid, would encourage crime and remove a restraint which continually operates upon the minds of persons who contemplate crime. Where an express provision of this description would be void the Court will not by implication read into the contract a stipulation which is contrary to public policy. "Death at the hands of public justice works a forfeiture of all right to indemnity under a policy, whether it does or does not contain such stipulation." May on Insurance, Sec. 326.

In the case of Bix v. Lanier, 112 Tenn., 393, the liability of the insurer was not involved. The question was as to who would be entitled to the insurance money after it was paid over by the insurer. In this case the husband insured his life, making his wife beneficiary under his policy in case she should survive him. He killed his wife and then committed suicide. The administrators of the husband and the administrators of the wife both claimed the insurance money. The Court held that the incapacity of a man's administrators to receive the proceeds of a policy on his life which had been assigned to his wife, because he wilfully took her life, does not cause their escheat to the state, but they will pass to her distributees as if the husband had never been in existence. The Court states, "The property never vested in the husband. Therefore he had nothing to forfeit. It is clearly not in conflict with that section of the Constitution which states that no convicion shall work corruption of blood or forfeiture of estate."

But the Illinois Court in Collins v. Metropolitan Life Ins. Co., 232 Ill., 37, after a careful consideration of the opinion in Amicable Society v. Bolland, supra, declared that it was no defense to an action on a policy of life insurance that the accused was executed after a conviction for crime unless the policy contained a provision relieving the company in express terms from liability under the contract in case of such contingency. Vickers, J., delivering the opinion of the Court, observed that at the time Amicable Society v. Bolland was decided the doctrine of forfeiture was still in operation in England. However, the Lord Chancellor in that case made no reference to the doctrine of forfeiture for conviction of felony, but based his entire opinion upon the grounds of public policy. From the Constitution of Illinois Vickers, J., in Collins v. Metropolitan Life Ins. Co., supra, quoted the following section: "All penalties shall be apportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate." "If," continued the learned judge, "a man who is executed for crime has at his death $1,000 in real estate, $1,000 in chattels and $1,000 in life insurance payable to his estate, his real estate descended to his heirs, and his personal estate to his administrators, but the $1,000 life insurance must be left in the hands of the company who has received the premiums, because it is said to be contrary to public policy to require the company to pay, lest by doing so it lend encouragement to other policy-holders to seek murder, and execution therefor, in order that their estates or heirs might profit thereby. We know of no rule of public policy in this state which will enforce this species of forfeiture." It was held further that the insured had complied with all the contractual obligations since premiums had been promptly paid, and that justice required the insurance company to fulfill its obligations by paying over the money to the proper beneficiaries. It is evident that the Illinois Court considered the doctrine of forfeitures the true doctrine upon which the English Court in Amicable Society v. Bolland reached its conclusion.

A further exception to the foregoing doctrines is stated in Lang v. Ins. Co., 110 N. W. (Nebr.), 1110, where it is stated that suicide will not defeat a recovery upon a contract of insurance not procured by the insured with the intention of committing suicide, unless the contract so provides in express terms. But if it was procured with such intent it is a fraud on the insurer and will defeat a recovery.

"Where death at the hands of justice is not expressly excepted in the policy the vested rights of third parties, innocent beneficiaries, designated as payees, would seem to be left undisturbed by the legal sentence and execution of the insured for crime, many courts considering that any question of public policy on the one side is more than offset by the injustice of depriving innocent survivors of their natural means of subsistence, and of leaving with the insurance company both the premiums and the insurance money." Richards on Insurance, 521.

The general weight of authority, however, would appear to be in accord with the rule adopted by the Federal Court in the principal case, that death at the hands of justice or by suicide is not a risk which has been assumed by the insurer, and that the insurer is relieved of all liability to any class of beneficiaries, although the policy contains no express provision exempting the insurer from liability.