of great intimacy; that they are members of the same socieety, partners in business, or the like. The feelings of the juror may also be shown, and that whether they amonnt to positive partiality or ill will, or not; as his views and opinions also may be whether mature, absolute or hypothetical. Indeed, any and every fact or circumstance from which bias, partiality or prejudice may justly be inferred, although very weak in degree is admissable on this issue; and the inquiry should by no means be restricted to the isolated question of a fixed and absolute opinion as to the guilt or innocence of the prisoner." And in the more recent case of The People v. Honeyman, 3 Denio, 124, the court in referring to the case of The People v. Bodine, as establishing the principle that it is for the good sense of the triers to determine how far the opinion formed or expressed by a juror has affected his mind. so as to render him competant, remarked:-If we have not been sufficiently explicit already, recent events render it proper to add, that although evidence which tends to show a bias on the mind of the juror must be received, it by no means follows that the juror should be set aside by the triers for slight causes. If, for example, the juror has heard, or has read in a newspaper, that the prisoner is guilty of the crime. laid to his charge, and has given credit to the statement, the evidence of those facts must be received; and the triers must not be instructed, as matter of law, that they are not at liberty to reject the juror. Still it would not be a wise or judicious act on their part to set aside the juror, unless they found that he had such a settled opinion concerning the prisoner's guilt, that he could not disregard what he had read, or heard out of court, and render his verdict on the evidence alone." And again: "Intelligent and right minded men, when they enter the jury box, know how to lay aside what they have heard and read out of doors, and pronounce their verdict upon the evidence, and upon that alone."

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Notwithstanding these views, however, furnishing a guide to the discretion of triers upon a challenge to the favor, it will be perceived that no rule, which can be safely enforced, has been established in respect to the degree of opinion necessary to sustain a principal challenge. The rule remains, that the formation or expression of an opinion sustains that challenge, and in its practical application, courts have not felt themselves safe in going beyond that simple inquiry. In the case of Mary Bodine, the attempt at a second trial in

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New-York failed, though eight thousand jurors were summoned, more than two thousand of whom were examined on principal challenge, and answered in the affirmative to the question, whether they had formed or expressed an opinion as to the guilt or innocence of the prisoner. Had those challenges been taken to the favor, the sensible test suggested by the supreme court in the cases just cited might have been safely applied, and the jury readily formed, if in the exercise of their sound discretion, upon sifting the degree or extent of opinion, the triers had been satisfied that it was not such as to endanger the substantial rights of the prisoner.

Another and not less striking inconvenience, not to say, absurdity, in allowing the formation or expression of an opinion as a ground of principal challenge, is, that after it has been overruled by the court, it may be again made a ground of challenge to the favor and re-submitted to triers. The practical result is, that after a solemn examination of the question by the court and its decision, the whole matter is again gone over, and triers are virtually called upon to overrule that decision, and to exclude a juror whom the court has already adjudged competent.

To remedy these evils, the sections under consideration propose,

1. To restrict the principal challenge, (or as it is termed in the Code, a challenge for implied bias,) to the cases mentioned in section 424, in which, when the fact is established, the partiality of the juror is manifest; and to confine within the challenge to the favor, (or as it is termed, actual bias,) an objection to the juror proceeding upon the formation or expression of an opinion, or any other ground showing him to be not impartial.

2. To define the kind of bias which will justify the triers in excluding the juror, to be the existence of a state of mind on the part of a juror in reference to the case or to either party, which satisfies the triers, in the exercise of a sound discretion, that he cannot try the issue impartially, and without prejudice to the substantial rights cf the party challenging.

To carry out these views, a subsequent section, (sec. 435,) provides that, "on the trial of a challenge for actual bias, when the evidence is concluded, the court must instruct the triers, that it is their duty to find the challenge true, if the evidence establishes the existence of a state of mind on the part of the juror in reference to the case or to either party,

which satisfies them, in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging; otherwise they must find the challenge not true. The court can give them no other instruction."

§ 426. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.

Declaratory of the existing rule.

§ 427. In a challenge for implied bias, one or more of the causes stated in section 424 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 423 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court.

The practice has been, to challenge generally for principal cause or for favor. The supreme court, however, in Freeman v. The People, 4 Denio, 31, 32, held that the distinct ground of the challenge must be stated. This section is in conformity with that decision.

§ 428. The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section 410, except that if the exception be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge.

§ 429. If the facts be denied, the challenge must be tried as follows:

1. If it be for implied bias, by the court:

2. If it be for actual bias, by triers.

The last two sections are in substantial conformity with the present practice.

430. The triers are three impartial persons, not on the jury panel, appointed by the court. All challenges for actual bias must be tried by the triers thus appointed, a majority of whom may decide.

A challenge of this kind is now tried as follows:-If two jurors have been already called, and take the box without challenge, it must be tried by them; if not, the court appoint two indifferent persons to try it, and who are thence named triers. If the triers try one juror and he be found indifferent, he and the two triers shall try the next. Co Lit. 158. And when two jurors shall be sworn upon the jury, they become triers, in the case of all subsequent challenges, and supersede the persons previous ly sworn as triers. 1 Bl. Com. 363. This is a very inconvenient practice, and one which for many reasons should be simplified. At one time you have two, then three, then two triers; and when there are three, questions have arisen as to whether their finding should be unanimous. This is put an end to by the proposed section. It seems to be objectionable also, to allow the jurors who are try the main issue, to be embarrassed by any collateral questions, and possibly to be in some degree prejudiced, by being compelled to determine on the admission of their fellow jurors. The decision of such questions is, and should be, kept distinct from the principal trial. The mode proposed seems to be both convenient and proper.

§ 431. The triers must be sworn, generally, to inquire whether or not the several persons who may be challenged, and in respect to whom the challenges shall be given to them in charge, are true, and to decide the same according to the evidence.

§ 432. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein.

$433. Other witnesses may also be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testimony, on the trial of the challenge.

§ 434. On the trial of a challenge for implied bias, the court must determine the law and the fact, and must either allow or disallow the challenge, and direct an entry accordingly upon the minutes.

The last four sections are declaratory of the existing rules.

§ 435. On the trial of a challenge for actual bias, when the evidence is concluded, the court must instruct the triers, that it is their duty to find the challenge true, if the evidence establishes the existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies them, in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging; and that if otherwise, they must find the challenge not true. The court can give them no other instruction.

Declaratory of the rule as laid down in The People v. Bodine, 1 Denio, 307, 308. See an extract from the opinion of the court in that case, in note to sec. 420-425, p. 197, 198.