Page:North Dakota Reports (vol. 1).pdf/552

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In a criminal case, where the jury was called and sworn singly, and without calling twelve jurors into the box, and where the parties were required to exhaust all challenges to individual jurors as each juror appeared, and before proceeding further with the call, held not error. Territory v. O'Hare, 30.

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Where the clerk of the district court, in calling names for a trial jury, did not obtain the names from any jury box, and did not use either a jury box or ballots in calling the jury, but called off the names of those who served as jurors from a list of names before him, held, it waserror, Held, further, that had the attention of the trial court been called to such irregularity before the trial began, it would have been its imperative duty to have promptly dismissed from the trial panel all jurors who were so drawn. But where, in a criminal case, such irregularities of the clerk were discovered by the defendants’s coun- sel while they were going on, and before the trial began, but he made no objection based on such irregularities, but, on the contrary, kept silent, as to the same until after a verdict was returned into court, held, that the irregularity was waived. Held, further, that such irregulari was of a character which might be waived without impairing defendant’s right of trial by jury. Held, further, that it was too late to take advantage of such irregularity upon a motion for a new trial, where defendant’s attorney had such previous knowledge of the irregularity, but reserved his knowledge thereof, and brings it before the court for the first time, and by affidavit, upon a motion for a new trial. Id.

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Where it is conceded that defendant’s challenge of a juror for cause in a criminal case was improperly overruled, but it did not appear affirmatively from the record that, at the time the jury was comleted and accepted, defendant had exhausted his peremptory challenges, held, that defendant was not in a position to take advantage of such erroneous ruling. In such case the court will assume that the juror, if objectionable to defendant, could have been gotton rid of by a peremptory challenge. Id.

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Challenge for cause should designate the cause relied upon. Id.

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Where, in a criminal case, defendant, at his own request, had taken the stand as a witness in his own behalf, and, on cross-examination, was required to testify as to his antecedents, and, in so doing, stated that he had passed under names other than his own, and had been in jail at different times and places, such testimony being objected to as irrelevant, and not proper cross-examination—no question of privil having been presented, held, not error. A defendant, under such cir- cumstances, occupies no better position than any other witness; hence, within the bounds of a sound judicial discretion, may be cross-examined as to specific collateral facts for the sole purpose of affecting his credibility. This is the rule as established by a decided preponderance of authority; but a different rule prevails in certain states, as in Oregon, California and Missouri, where statutes have restricted the right of cross-examination to matters drawn out in chief. Id.