June, 1829.

#### The State v. Arthur, a slave.

From Onslow.

•The right of challenge is intended to secure an impartial trial, by excluding objectionable persons from the panel, and not to enable the accused to select a jury of his own choice. Therefore where» juror was challenged for cause by the prosecution, and the challenge allowed, and the jury completed before the peremptory challenges were exhausted, this Court refused to examine into the sufficiency of the cause of challenge.

.On a trial for murder, proof that a written paper found n6ar the body of the deceased, was given to the prisoner’s son for the use of his father, is a sufficient ground to permit the paper to go to the jury, with instructions to disregard it unless satisfied that it actually came to the prisoner’s possession.

The prisoner was indicted for murder, and tried on the last circuit before his honor Judge Norwood.

In making up the jury it was alleged on the part of the State, and assented to by the Counsel for tiie Prisoner, that the jury ought to be entirely composed of slave owners. The question being considered doubtful by his Honor, he consented to the adoption of that rule in this case,-especially as it could not operate injuriously to the prisoner. Two jurors were challenged by the prisoner for cause, and the cause shown was that they were not slave owners ; under the rule adopted the challenges were allowed. Afterwards a challenge for the same cause was made by the State, and objected to by the Counsellor the prisoner, but was allowed by his Honor. A jury was made up from the panel without exhausting the peremptory challenges of the prisoner.

Upon the trial it was proved, that the body of the Deceased was found on the morning of Thursday the 27th of November, 1828, on the side of the road. There were appearances of a fierce conflict between two men for the distance of thirty-five yards* within which space, and *218within twelve yards of the body, the following paper was found :

“ Permit Arthur to pass and repass till Monday morn-jn^ Hesk November 33, 1828.

HENRY SHEPPARD.’5

Sheppard, the person who signed the paper, testified that ho wrote this permit by the direction of the prisoner’s master, and that lie delivered it to a little boy, tiie son of the prisoner to carry it to his father. On (his evidence the Counsel for the prosecution moved to read the paper to the jury, which was objected to by that of tiie prisoner. His Honor thinking there was sufficient evidence of the receipt of the paper by the prisoner, to entitle the state to read it to (lie jury, overruled the objection ; but his Honor at tiie time the paper was read, informed the jury that if they should believe tiie prisoner actually received the permit when it was written, they would give to that circumstance such weight as they thought proper; but if they should think that the prisoner never received it, then that they should exclude from their consideration all the evidence relative to it.

The Prisoner was convicted of the charge, and appealed to this .Court.

The Attorney-General contended,

that the Slate was not compelled to show cause for her challenges until the whole panel had been exhausted, and cited 4 Elk. Com. 353 — 2 Maw. F. C. 413.

Toomer, Judge.

Trial by jury is one of the boasted privileges of our country. The law secures to every man accused of crime a fair and impartial trial, by a jury of good and lawful men, free from all exception.— By a jury of this character, was the prisoner tried and convirfcd. When put upon his trial, he did not exhaust his right of peremptory challenge; and accepted, according to the usage and practice of our Courts, every juror who passed upon his guilt.

*219The State, by the 8 dicitor, challenged fur cause, one of the individuáis-named o» (he panel, and assigned as cause for challenge, that he was not the owner of slaves; 6< tiie prisoner’s Counsel objected to the legality of the challenge,” but it was allowed by the Court. Two of the panel had been previously challenged by the prisoner for the same cause, and the challenges allowed. It is not pretended, that the prisoner had not a fair and impartial trial, or that the jury, by whom be was tried, was not of his choke — accepted by him, and free from all exception.

It is held, that the State need not assign cause of challenge, till the panel is gone through j and then the prosecuting officer must show the cause, and if not allowed by (he Court, the juror must be sworn. (4 Black. Com. 373, 2 Hale’s P. C. 271). Tis has been the usage of our Courts ; and it is in accordance with the ¡nao*-tice of the Courts of that country, from which our legal notions have been derived. Uad the panel been gone through, the prisoner could then have claimed the right to have on his trial the juror who had been challenged by the State; and the prisoner might hate had reason for complaint, if the juror were discharged, and the cause assigned did not disqualify him. The prosecuting officer could not, at any anteceden! stage of the proceedings, be required to assign the cause, or the Court to pronounce its decision. The juror was to stand aside, until the pane! had been gone through, when the cause of challenge and the decision of the Court could be-required.

The prisoner accepted a jury, meeting his appr^j^-’ tiori and free from all excepuon, before it "was héfessaf-y-for the prosecuting officer to assign the cause of challenge, or for the Court to decide on its sufficiency. This challenge by tiie State was in conformity to two challenges, previously made by the prisoner for «he same cause, and allowed by the Court. The precedent was *220established bv the prisoner; it was only followed by the State. Yery di fife rent would base been the aspect of this case, and \ery different my conclusions, had a juror been imposed • on the pii.soner, of whose qualification there was the least doubt.

The purposes of justice, and the end of ciiminal proceedings are attained, when a lair and impartial trial is secured to the accused. The right of challenge is given to prisoners, not that a particular individual may be put on the jury, but that the prisoner may have a jury free from ail objeción. The prisoner could have arbitrarily and capriciously challenged, without assigning any cause, thirty-five jurors. The circumstance of accepting a jury, without exercising to its full extent this right of peremptory challenge, shows that the jury was of the prisoner’s choice, and free from all exception.

This view of the case, dispenses with the necessity of expressing any opinion as to the qualification of the juror. That point does not now require the decision of the Court. And any construction given by me. to the act of 1816, (Rev. c. Pi 2) as to its «Sect in repealing that part of the act of 1793, (Rev. c■ 381) prescribing the qualifications of jurors for Hie trial of slaves, would be a mere obiter dictum, and could furnish no rule for the government of future trials. The opinion on this subject, expressed by that eminent jurist, and accomplished scholar, the late Chief Justice Tateor, in the case of the State v. Jim, (ante vol. 1, p. 144) was not the decision CmVit. Tic- ques.iou is considered open for ad-fe’Mtpn. YyYiat op'iiiun is enf Jed to respect, for Hie iicTr.arrotnp.-inv it ; bm still more for the ju-diriarrei>«fá-ti*»h ai"! high character of the individual who expressed $1- — hut 2 wish not to be understood as concurring in if'M.

I.perceive no ‘ívror- in the admission of evidence, or iri the Judge’s instructions to tnc jury».

*221Henderson, Chief-Justice.

T!ie motion for a new irial is founded on a mistaken notion of the law, as to the formation of juries in capital cases. The rule is not that the prisoner shall he tried by a jury of his own choice or selection, but by one against which, after haying exhausted his peremptory challenges, he can offer no ju’st exception. He has not the right of claiming that every person drawn as a juror, and tendered to him, shall be of his jury. The Court, to be sure, cannot arbitrarily withdraw a juror from him without any cause. But if iu ¡he exercise of this judgment, it should improperly aljow a challenge made by the. State, it is no cause for a new trial. That this is the case is most con-clushely shown, by the practice under the act of Hen. 8, allowing the King to challenge lor cause. Under that statute (he uniform practire has been, not to pass upon the cause of challenge, until the panel is gone through. The challenged jurors stand aside, until that is done, and if a jury is formed without them, the cause of challenge is not examined But if the prisoner had a right to the juror, unless the cause of challenge was good, the Court must have passed upon it before another was drawn. As to the question, whether the challenge was properly allowed or no1, it is unnecessary to give an opinion, and none is in ¡ended to be intimated. The permit, Í think, was properly received in evidence, and the law properly laid down by the Judge.

Per Curiam. — Let the judgment be affirmed.