Famulener v. Anderson ( 1864 )

Bkinkerhobt, C.J.

The act of February 25, 1859, “to amend section fourteen of an act entitled an act relating to juries,” etc., 4 Curwen’s St. 3180, provides, that “any person who shall have served once already on a jury as a talesman in the trial of any cause in the same court during the term, may be challenged for such cause,” etc.

We think that on the facts stated in the bill of exceptions, the juror, List, was brought fairly within this cause of challenge prescribed by the statute, and that the court below erred in overruling the challenge.

But on the second point assigned for error, we are of opinion that there was no error in the charge of the court below as given to the jury, and none in its refusal to charge as requested. It seems to us that both the charge as given and the refusal to charge as asked, were required by the law as laid down by the supreme court of this state in Ohio v. Boring, 15 Ohio Rep. 507; and after listening to arguments of unusual force and ability, and giving the matter the most thorough consideration of which we are capable, we are not prepared to say that the law was not ruled correctly in that case.

The law, as we find it to be, may call for the reforming Hand of legislation, and, for myself, I think it does; but we can not legislate.

Por error in overruling challenge to juror, the judgment is reversed, and cause remanded.

Scott, Day, Welch and White, JJ., concurred.