Cooley v. State
| Decision Date | 01 January 1873 |
| Parties | JAMES COOLEY v. THE STATE OF TEXAS. |
| Court | Texas Supreme Court |
1. Prescribing rules for impaneling juries on state cases.
2. No challenge should be made until the panel is full; nor is it proper to make more than one peremptory challenge at the same time.
3. Less than twelve men will not constitute a jury in state cases, and challenges should never be made except from a full jury.
4. The proper mode of selecting a jury is to proceed by trial or examination until twelve qualified jurors are found; then the party holding the affirmative of the issue should be required to pass upon the jury; should he pass upon it without challenge, the party holding the negative of the issue is then called upon to pass upon it. Should either party make a peremptory challenge, another juror must be called, who, if qualified, takes his seat in the box, when the peremptory challenging may proceed.
APPEAL from Wise. Tried below before the Hon. C. C. Binkley.
This was a felony, and the opinion is confined to a discussion of the practice that should obtain in impaneling jurors, and especially in making challenges.
The facts, so far as necessary, appear in the opinion.
No brief for appellants furnished reporters.
Attorney General, for the state.
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 impaneling 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 incompetency 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 to this state. See Van Hook v. The State, 12 Tex. 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 Bla. 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. 637;3 Iowa, 216; 23 Penn. St. 12; 8 Gill, 487;8 Blackf. 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 Barn. & Ald. 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. Co. Litt. 158; Bac. Abr. tit. Juries, ch. 11; 6 Cal. 214. A juror who has been unsuccessfuly challenged for cause may be peremptorily challenged. It is therefore obvious that all challenges for cause should be exhausted before any peremptory challenge is made. 4 Bla. Com. 356; 6 Tenn. 531; 4 Barn. & Ald. 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...
To continue reading
Request your trial
-
Graham v. Hawkins
... ... assigns, all my right, title, claim and interest in and to the league and labor of land, patented to me, as assignee of Littleton White, by the state of Texas, on the first day of April, A. D. 1847; and for a more perfect description of said land reference is hereby made to the accompanying patent ... ...
-
People v. Curran
...a juror after he has been sworn. State v. Lyons, 70 N. J. Law, 635, 58 Atl. 398;Santry v. State, 67 Wis. 65, 30 N. W. 226;Cooley v. State, 38 Tex. 636;State v. Armington, 25 Minn. 29;Sackett v. Ruder, 152 Mass. 397, 25 N. E. 736,9 L. R. A. 391;People v. Reynolds, 16 Cal. 128;Bradham v. Stat......
-
Mahon v. State
... ... his authority for the statement: People v. Brown, 48 ... Cal. 253; State v. Davis, 41 Iowa, 311; State v ... Knight, 43 Me. 11; People v. Doe, 1 Mich. 451; ... State v. Taylor, 134 Mo. 109, 35 S.W. 92; Cox v ... People, 80 N.Y. 500; Cooley v. State, 38 Tex ... 636. Mr. Chitty, in his valuable work, states the rule in ... substantially the same form at star page 546 ... The ... reason of the rule seems to be that a challenge to the array ... and a motion to quash the panel are informal pleadings, and ... all ... ...
-
Mahon v. State
...State v. Knight, 43 Me. 11; People v. Doe, 1 Mich. 451; State v. Taylor, 134 Mo. 109, 35 S. W. 92; Cox v. People, 80 N. Y. 500; Cooley v. State, 38 Tex. 636. Mr. Chitty, in his valuable work, states the rule in substantially the same form at star page The reason of the rule seems to be that......