State v. Cady , 80 Me. 413 ( 1888 )

Peters, C. J.

Two respondents weje arraigned together under a joint liquor indictment, having the same coúnsel to answer for them. The judge allowed each respondent two peremptory challenges in empanneling the jury, and when one respondent in person challenged a juror, the other disputed the challenge, claiming that he had a right to have the challenged jhror on the panel. One respondent accepted and the other rejected the juror.

The judge accorded to them two challenges each, while they were entitled to two jointly, and no more. In capital cases each prisoner, under a joint trial, is entitled to his personal challenges» The statute in that case prescribes that "each person” shall be sO entitled. In all other criminal cases it is "the party” that is entitled to the two challenges. If they do not agree Upon the persons to be objected to, they lose their challenges. The presumption is, where respondents in criminal cases, not lately capital, consent to be tried together, or where the judge in his discretion order’s a joint trial, that their interests are alike, and differences between them are uncalled for. By R. S., c. 134, § 20 ; it is provided that issues in fact in criminal cases not capital, shall be tried by a jury drawn and returned in the same manner* and challenges shall be allowed, as in civil cases. By R. S., ch. 82, § 74, dt is pfoVided that in civil cases, and criminal Cases, not capital, "each party” is entitled to two peremptory Challenges when a jury is empanneled by lot. Party does not mean person. Allowing challenges Without cause is a merely Statute right, not to be extehcled by construction. Where defendants are numerous, if each had ..personal challenges, it would require the presence of an impracticable number of jurórs» This question is settled by several authorities. State v. Reed, 47 N. H. 466 ; Stone v. Segur, 11 Allen, 568 ; State v. Sutton, 10 R. I. 159. These cases show that several respondents aré but one party, and are entitled to no more challenges than one defendant. But if, in his discretion, the judge extended a greater privilege than the statute concedes, neither respondent is in a position to complain of it. We have held in Snow v. Weeks, 75 Maine, 105, that to a ruling of a judge, in excusing or rejecting a juryman, exceptions will not lie. It is there said : "He may put off a juror when there is no real and substantial cause for it. ‘That cannot legally injure an objecting party as long as an unexceptionable jury is finally obtained. He may-put a legal juror off. He cannot allow an illegal juror to go on.” This question was exhaustively aud learnedly examined in a case of piracy, United States v. Marchant, 12 Wheat. 480, in which Judge Story maintains the same doctrine, and he there says : "The right of peremptory challenge is not of itself a right to select but a right to reject jurors.” He further remarks that the right "enables the prisoner to say who shall not try him, but not to say who shall be the particular persons who shall try him.”

The objection to the county attorney’s remarks is without force. He was expressing his judgment upon the testimony aud giving illustrations of it in an unobjectionable manner. He was not relating outside facts. The other objections have no weight.

Exceptions overruled.

Walton, Danforth, Virgin, Libbey and Foster, JJ., concurred.