Page:Stewart v. State.pdf/5

Rh sec. 11,) and it did not appear that their opinions were founded on rumor. Sec. 161, ch. 52, Dig.

6. The court erred in refusing the prisoner the benefit of triers to determine the competency of the juror, Isham J. Ready, and in assuming to determine of his competency. A challenge to the favor, as this was, was determined, always, by triers at common law. See ''1 Ch. Cr. Law, p. 549 et seq.''

The statute (Dig. 412, sec. 412) declares that "all challenges for cause may be tried by the court on the oath of the person challenged, or by triers on other evidence, and such challenge shall be made before the juror is sworn." The competency may be tried by the court, or by triers, who is to make the election? If the court, then the prisoner may be deprived of his common law right of having triers, which is not taken from him by the statute. See ''Smith's Com. on Const. and Stat. Construction, title Repeal.''

That the prisoner was entitled to triers, if he asked them, and did not agree to submit the matter to the court. (See The People vs. Rathburn, 21 Wend. 542.) And the refusal is ground of error. ''Ib. People vs. Mather, 4 Wend. 229. State vs. Benton, 2 Dev. & Bat. 196. 2 Ire. Dig. 612. 1 Denio 181. 2 Bro. Law Dic. 583, 584.'' 

Mr. Chief Justice W delivered the opinion of the Court.

The plaintiff in error was indicted in the circuit court of Clark county for murder. The indictment was found at the September term, 1848. Upon being arraigned, he standing mute, the plea of not guilty was entered for him in accordance with the statute, and at the same term he presented his application for a change of venue, on account of the prejudice alleged to exist against him in the minds of the people of Clark county. The application was granted, and the usual orders made pursuant to the statute, for the removal of the cause to the county of Hot Spring for trial. The transcript of the record was filed in the office of the clerk of the Hot Spring circuit court on the 29th January, 1849, and the cause stood for trial at the ensuing March term of that court, but the