Sackett v. Ruder
| Decision Date | 25 October 1890 |
| Citation | 152 Mass. 397,25 N.E. 736 |
| Parties | SACKETT v. RUDER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Pub.St.Mass. c. 100, § 25, is as follows:
Bond & Mason and C.N. Clark, for plaintiff.
W.G. Bassett and J.T. Keating, for defendant.
At common law no peremptory challenge to jurors was allowed in civil actions, and in criminal cases, where such challenges were allowed, the right of challenge must be exercised before the juror was sworn. Creed v. Fisher, 9 Exch. 472; Stone v. Segur, 11 Allen, 568; Reg. v. Frost, 9 Car. & P. 129, 137; Reg. v. Key, 3 Car. & K. 371, 2 Den.Cr.Cas. 346. The statutes in force here on this subject when the present case was tried, were Pub.St. c. 170 §§ 33, 39, and chapter 214, §§ 5, 6. The first clause of chapter 170, § 36, is as follows: "In all cases, civil or criminal, either party shall, before the trial commences, be entitled to challenge peremptorily two of the jurors from the panel called to try the cause," etc. Similar language is used in chapter 214, § 6, with reference to the challenging of jurors, "when the indictment is for an offense punishable with death or imprisonment for life." The provisions of statute relating to returning jurors from the bystanders "to complete the panel" are found in Pub.St. c. 170, §§ 33, 34. In civil causes, except in the county of Suffolk, the first 12 jurors on the list of jurors who have been summoned to attend are, unless excused, sworn and impaneled as the first jury, and the next 12 are sworn and impaneled as the second jury, and the jurors are not sworn, in each case, but once for all causes that may be committed to them. In criminal cases, the jurors are called, sworn, and impaneled anew for the trial of each case, "according to the established practice." Id. §§ 26-32. In criminal cases, according to the established practice, when the prisoner is set to the bar to be tried, the clerk publicly announces to him that he has the right to challenge a certain number of jurors without cause, and that he must exercise this right after they are called, and before they are sworn. There is no similar announcement in the trial of civil causes. Civil causes are often tried in the absence of the parties, and from this, and the practice of swearing the jurors at the beginning of the session to give a true verdict in all causes that may be committed to them, it necessarily resulted that in any particular civil action the right of peremptory challenge might be exercised after the jurors had been sworn, and by the attorneys of the parties for them. When the right of peremptory challenge was first given in civil causes by St.1862, c. 84, the supreme judicial court was authorized to prescribe, by general rules, the manner in which it should be exercised, (see Pub.St. c. 170,§ 37;) but no rules having been prescribed, the practice in civil causes became established of permitting peremptory challenges up to the time when the trial commenced by the reading of the writ, or by taking some action which, in the ordinary sense of the words, may be said to be the beginning of the trial. In criminal cases, the practice continued of requiring the prisoner to exercise the right of peremptory challenge before the jurors were sworn. It was considered that a criminal trial commenced when the prisoner was set to the bar to be tried, and, when having pleaded not guilty, the jurors were called, and, after giving him an opportunity to challenge them, were sworn. The right of a court to reject a juror for cause, even after he has been sworn, if the attention of the court is then for the first time called to the objection, is not now under consideration. The practice as we have stated it is, we think, well established in both civil and criminal cases with reference to the challenge of jurors who have been regularly summoned. With reference to the peremptory challenge of jurors who are returned from the by-standers, we are not aware that the occasions have been so frequent that the practice can be said to be well established. Such a juror when returned, even in a civil cause, is sworn only for the particular cause, and he does not become one of the panel to try the cause until he has been accepted as a juror by the court. Neither party to the present case has argued that there is no right whatever to challenge peremptorily a talesman, and as the statute gives the right "to challenge peremptorily two of the jurors from the panel called to try the cause," we think that the right of peremptory challenge extends to by-standers put upon the panel as well as to the jurors regularly summoned. The parties have nothing to do with the original selection of jurors, whether they have been regularly summoned, or have been returned from the by-standers, and the same reasons for allowing peremptory challenges to a party exist in one case as in the other. The question which has been argued is whether a party in a civil cause can challenge peremptorily a talesman after he has been sworn, but "before anything else was done." This question, we think, must be decided by analogy, and we are of opinion that the right to challenge peremptorily such jurors as are returned from the by-standers and accepted by the court must be the same as the right to challenge other jurors upon the same panel,...
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Waggoner v. Dodson
...trial." Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706. And so in the supreme court of Massachusetts. Sackett v. Ruder, 25 N. E. 736. 9 L. R. A. 391. But be the rule as it may where the right to challenge is denied, the judgment in Hargrave v. Vaughn, 82 Tex. 347, 1......