Page:Stewart v. State.pdf/22

Rh into the nature of the opinion so formed or expressed, as if upon challenge to the favor; and whenever the presumption arises, it devolves upon the party resisting the challenge, to remove it, and he must make it appear that such opinion is founded on rumor, and that it is not such as to bias or prejudice the mind of the juror.

According to our view of the statute, it does not sufficiently appear, from the statement of the two jurors, Williams and Moore, that the opinion formed, or formed and expressed by them, was founded on rumor, and until it did so appear, their declaration, however honest and true, that it had left no bias or prejudice on their minds, could not be received against the presumption of law. If the opinion be formed or expressed, the law presumes that it is such as to bias the mind of the juror, unless it is founded on rumor. It must appear to be so, and it is not enough that the juror is uncertain, or that the court or triers may be left in doubt whether it be founded on rumor. As the nature of the opinion in the mind of the juror may often be a subtle enquiry, so the source of his information may sometimes be a difficult one. But the juror is not required to know what witnesses have been summoned in the cause, nor is that the only proper test. As a man of ordinary intelligence, he ought to be able to state whether the persons with whom he conversed, had stated as of their own knowledge any fact which may have materially conduced to the formation of such opinion. If he did not understand them as knowing what they narrated, it might safely be inferred that the opinion was founded on rumor.

From the statements of the juror, Ready, upon his voir dire, he was competent; but we have thought it clear that, under the statute, the party challenging had the right to elect how he would have the cause of challenge tried. The court, therefore, erred in deciding the two first named jurors to be competent, and in refusing triers to determine as to the competency of the other one.

After reserving those exceptions, the plaintiff in error challenged peremptorily all three of those jurors. The plaintiff in