Page:Stewart v. State.pdf/23

Rh error complains that he was compelled, by the decisions of the court in question, to exhaust three of his peremptory challenges. The record here does not show that the prisoner had exhausted all his peremptory challenges in the empanneling of the jury, and it seems to have been held, in the case of McGowan vs. The State, (9 Yerger 184,) under similar circumstances, that the judgment would not be reversed for an error in deciding a juror, who had been challenged for cause, to be competent, if the party afterwards challenge him peremptorily. But in the case of The People vs. Brodine, before cited, it did appear that the prisoner had challenged but thirteen jurors peremptorily, although she might have challenged twenty, and it was argued that she was not bound to have accepted a juror erroneously decided to be competent upon her challenge for cause, but might and ought to have corrected the error by availing herself of the peremptory challenges allowed her by law for that purpose. The opinion of the court was that, in no case is the prisoner bound to resort to his right to make peremptory challenges, but he may exercise it according to his judgment or caprice. "It is for his own exclusive consideration and decision, and the court has no right to interfere with his determination." The question was to be considered as if she had no right of peremptory challenge, and as if the acceptance of the juror was forced' upon her in consequence of the erroneous decision, and then she would stand upon the legal exception. It follows, from this reasoning, that if the party chooses to challenge the juror peremptorily when he is not obliged to do so, he, by the exercise of his own will or caprice, has undertaken to correct the supposed error of the court, and waived the benefit of the previous exception. Because, if the decision was right, the party excepting could not have been injured by it, if it was wrong he had the benefit of his exception; but if at the same time in doubt whether it be right or wrong, and he prefers to take the chances for an acquittal, and so elects to rid himself of the obnoxious juror by a peremptory challenge, there is no reason for holding that he can avail himself on error of the