Page:Stewart v. State.pdf/21

Rh conclude from other evidence and against his own testimony that he was not indifferent.

But under the statute, as we have already intimated, according as the mode of trial is demanded by the party challenging, the evidence is confined to the oath of the juror, or the trial is upon other evidence to his exclusion. Because there might be cases where the State or the accused, would not be willing to trust the issue upon the oath of the juror himself; and, on the other hand, if the party challenging does elect to make the juror his witness, it would seem that he ought not to be allowed to introduce other evidence in order to contradict or impeach him. The section quoted was designed, in consequence of the uncertainty and conflict of the decisions upon that point, to be a statutory definition of the opinion which disqualifies a juror, and so far as an opinion is a cause of challenge, it covers the whole ground of a principal challenge, and a challenge to the favor, and the distinction between them ceases. So that, after a party challenging has elected to submit his challenge for cause to the court, if the challenge be not sustained, he may not indirectly appeal from that decision by giving the same matter in evidence before triers upon a challenge to the favor.

Whether the cause of challenge be tried by the court or by triers, upon the oath of the juror or upon other evidence, the first inquiry is, whether the juror has formed or delivered an opinion on the issue, or any material fact to be tried. If he has, the presumption is that he is disqualified. This follows from the language of the statute, and at this day we need not quote authority, or argue that such ought to be the law. The ancient common law doctrine that the opinion by one of the vicinage, and founded on the statement of witnesses, does not disqualify, unless it be the result of malice or ill will, has not prevailed in this country; and because the opinion, though honestly formed, is sufficient to disqualify, it is not improper, and is no imputation against the juror, to enquire of him touching such opinion. But the statute allows this presumption to be removed by an enquiry