State of Florida vs. Madoil-Opinion of Court. more length than the case immediately under consideration. would seem to require. When a person is called as a juror he may be sworn on his "voir dire," and asked whether he is twenty one years of age, whether he is a householder, whether he is interested in the result of the suit or is of kin to either of the parties? and whether he is a citizen; and, indeed, all questions that are pertinent, the answer to which will not tend to degrade the juror or be to his dishonor or discredit. In prosecutions for felony, he may be further interrogated by the court at the suggestion of the accused, as to whether he has made up and expressed an opinion as to the guilt or innocence of the accused, and the character of this opinion as to whether it is a fixed opinion, or only a hypothetical opinion that will yield to evidence given on the trial. If the parties in civil suits, or the accused in criminal prosecutions, omit to make the objection to a juror before he is sworn, it will be too late to do so after he has been sworn. There was formerly much doubt expressed in the books as to whether a juror might be asked in prosecutions for felonies, if he had made up an opinion against the accused, or if he had any prejudice against him. In the case of The King vs. Edmonds et al., 4 Barn. & Ald., 471, after conviction upon an indictment for a conspiracy, the defendants moved for a new trial upon various grounds. One was the refusal to allow the prisoners to ask jurymen as to supposed expressions by some of them, showing opinions hostile to the defendants and their cause. There was no attempt to prove any such expressions by extrinsic evidence, but it was proposed to obtain the proof by questions put to the jurymen themselves. The Judge who tried the case refused to allow such questions to be answered, and the court of King's Bench held that he was right in this refusal. Abbott, Chief Justice, delivering the opinion of State of Florida vs. Madoil-Opinion of Court. the court, said: "The authorities showed that the juryman himself was not to be sworn when the cause of challenge tended to his dishonor; and it was a very dishonorable thing for a man to express illwill toward a person accused of a crime in regard to the matter of his accusation." On the trial of Peter Cook, for high treason, 13 Howell's State Trials, 334, the court held, that the juryman could not be asked on "voir dire," whether he had said he believed the accused guilty, and such seems to be the settled law of England at this day. In the case of the State vs. Baldwin, 1 Constitutional Rep., 289, it was decided in South Carolina that the accused could not compel a juror to declare whether he has formed in his own mind an opinion as to the guilt or innocence of the prisoner in regard to the offence with which he is charged; but if the juror has expressed such an opinion, upon due proof of such declarations, he should be rejected as unworthy to sit upon a trial where the life of a man is concerned. This has ever since been the rule in South Carolina; see The State vs. Sims, 2 Bailey's Rep. 29, and The State vs. Crank, ib., 66. In Pennsylvania the same rule prevails, 4 Yates, 267. In New York and Virginia the rule is different; 7 Cowen's Rep., 125; 2 Va. Cases, 378. The leading authority on this subject is the opinion of Chief Justice Marshall on the trial of Aaron Burr. On this trial the accused was allowed to ask the jurors, as they came forward to be sworn, if they had formed and expressed an opinion as to his guilt or innocence. Since that time most of the States have followed the rule as laid down by the Chief Justice; it is the settled practice in the Federal Courts, and may be considered as the established law in this country. We have thus seen what are the rights of parties, and what questions may be propounded to jurors in civil suits, and in prosecutions for felonies; and we have already shown if a party will not take his challenge before the juror is State of Florida vs. Madoil-Opinion of Court. sworn, he can never afterwards be allowed to challenge for a cause existing before he was sworn; 3 Burrow's Rep. 1858. "Were a defendant allowed to take his challenge to the jurors after the trial, he never would do it before, but would always rather depend upon moving the court for relief after trial; for if he should be acquitted he would say nothing about the disqualification of the juror, and if convicted, he would avoid judgment by offering his objection. This in fact would be placing him in a situation totally exempt from danger and from punishment, so long as he could get a juror sworn, against whom he could offer any legal objection, and would give him the additional advantage of several chances for his acquittal." See the opinion of Haywood, J., in the case of the State vs. Greenwood, Hayw. Rep. 141. Where the party has the right to challenge either in civil suits or in criminal prosecutions, and neglects or omits to do so before the juror is sworn, it would require a strong case of hardship to induce this court to interfere to set aside a judgment and award a new trial. There is, however, one case in which an appellate court will relieve a party, and that is, where one of the jurors who served upon the trial had previously been convicted of an infamous crime.In such a case the party will not be permitted to ask the juror on "voir dire" if he has been convicted of an infamous crime, and he may thus be sworn on the jury, and the knowledge of his infamy obtained after he is sworn. In a case like this, it would be the duty of the appellate court to set aside the judgment and award a new trial, for juries must be "probi et legales homines." A large discretion is vested in the judge who tries a cause, and this discretion will not be reviewed when rightfully exercised in furtherance of the ends of justice. We have already seen from the authorities cited, that the incompetency of a juror is no ground for granting a new trial by this court; and that if the juror is not qualified to State of Florida vs. Madoil-Opinion of Court. serve, he must be objected to before he is sworn on the jury; after he is sworn, it will be too late to raise the objection. If, however, from any cause, the mind of a juror who served on the trial is not in a proper and fit state to render an impartial verdict, the court who tries the cause, in the exercise of a sound discretion, should grant a new trial, in order that the ends of justice may be attained. In the exercise of this discretionary power, courts should be careful not to give too much weight to charges of bias or prejudices made against jurors, but should require satisfactory proof that the charge is well grounded. Incompetency for the want of the requisite property qualification or residence, will not of itself be sufficient cause for setting aside a juror after he is sworn, or for granting a new trial. The incompetency that will authorize the court below to interfere after a juror has been sworn, must be of such a character as would defeat a fair and impartial trial; of this the court below must judge in the exercise of a sound legal discretion. In this case, the only incompetency alleged against the jurors is, that one or more of them were not householders, and another had not resided in the county in which the trial was had more than three months. We do not think there were such objections to the jurors as entitled the accused to a new trial. The judgment of the court below is affirmed. Hartridge & Co. and Baker & Co. vs. Knight & Frazier-Opinion of Court. BRYAN, HARTRIDGE & Co., APPELLANTS, VS. KNIGHT & FRAZIER; APPELLEES; C. R. BAKER & Co., APPELLANTS, vs. KNIGHT & FRAZIER, APPELLEES. BAKER, J., delivered the opinion of the Court. These cases were commenced by attachment in Columbia County, Suwannee Circuit. On motion before the Hon. T. T. Long, Judge of that circuit, the attachments were dissolved and the case dismissed. The exceptions taken and errors assigned were the same as in the case of E. Simpson & Co. vs. Knight & Frazier, decided by this Court at its present term. In disposing of these cases it is only necessary to refer to the opinion of the court in that case, where all the points raised by the assignment of errors in these cases has been fully discussed and decided. It is therefore ordered that the judgment of the Circuit Court dissolving the attachments and dismissing the above stated cases be reversed and the cases remanded to the Circuit Court for further proceedings. WILLIAM H. JERNIGAN VS. LUTHER & Co. McLeod & Broome for Plaintiff in Error. J. J. Finley for Defendants in Error. DUPONT, C. J., delivered the opinion of the court. This case was heard at the term of the Supreme Court held at Lake City in February last; and the assignment of errors |