dressed to the equitable discretion of the court. It is true the right of challenge is allowed to the prisoner to enable him to object to any juror, but not to select a jury from the panel returned, all of whom, in the absence of such objection, are presumed to be competent, and it matters not by what particular jurors the prisoner is tried, so they are impartial. It is true the prisoner is not entitled to the absolute attendance of the jurors returned upon the venire, or to have them called in any particular order, and the trial will not be reasonably delayed to enforce the attendance of those of the panel who make default, their places being summarily supplied by talesmen, as where the panel is exhausted. But on the supposition that those summoned will attend, the prisoner has the right to know who they are, and to have a list of them furnished him a certain time before the trial. The law gives him this right, and if he make it appear that he has been deprived of it, we are bound to presume that he was injured by such deprivation, and there is no discretion to deny him the benefit of his legal exception.
4. The next exception in order, is that relating to the competency of jurors, and the mode of determining a cause of challenge, On this point, we shall endeavor to state briefly our views of what would seem to be the correct practice under the statute. The two sections, relating to the matter, are as follows: "It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried; but, if it shall appear that such opinion is founded on rumor, and not such as to bias or prejudice the mind of the juror, he may be sworn. 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 challenges shall be made before the juror is sworn. Rev. Stat., title Crim. Pro., sec. 161 and 162.
Construing this statute with reference to the comman law, we think the correct mode of proceeding under it, as to challenges to the polls for cause, is that when a juror is presented, it is the duty of the court to enquire, first of the attorney for the State,
Vol. 13—47.
