Points decided.

[No. 762.]

THE STATE OF NEVADA, RESPONDENT, v. WILLIAM McCLEAR, APPELLANT.

SECTION 3, ARTICLE I, OF THE CONSTITUTION CONSTRUED.-The provisions of the Constitution that, "The right of trial by jury shall be secured to all, and remain inviolate forever," refers to the right of trial by jury as it existed at the time of the adoption of the Constitution.

COMMON LAW JURY-POWER OF THE LEGISLATURE.-It is competent for the legislature to point out the mode of impaneling juries, and the forms of the common law in procuring a jury can be changed and made subject to statutory regulations.

JURY LAW OF 1875.-Heid, unconstitutional. IDEM-MEANING OF WORDS "TRIAL BY JURY."-The terms "jury" and "trial by jury," as used in the Constitution, mean twelve competent men, disinterested and impartial, not of kin, nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor of or against either party, duly impaneled and sworn to render a true verdict according to the law and the evidence.

IDEM-REASON AND POLICY OF THE LAW.-The reason, expediency and policy of the law is determined by its passage in the legislature and approval by the governor. These questions furnish no ground for declaring the law invalid.

IDEM RIGHT TO CHALLENGE A JUROR FOR ACTUAL BIAS.-It is not within the power of the legislature to deprive a citizen accused of crime of the right to challenge a juror for actual bias.

IDEM RIGHT TO CHALLENGE A JUROR FOR IMPLIED BIAS.-The right to challenge for implied bias may, to some extent, be regulated by the legislature, care being always taken to preserve inviolate the right of trial by a jury of twelve impartial men.

IDEM-PEREMPTORY CHALLENGES.---There is a broad distinction between challenges for bias and peremptory challenges. The former challenges exist as matter of right. The latter is by favor of the legislature only. The number of peremptory challenges has always been regulated by statute..

IDEM OBJECT OF CHALLENGES.-The great purpose of the right to challenge a juror for actual or implied bias is to secure to the defendant and the state a fair and impartial jury.

IDEM-EFFECT OF DECLARING THE LAW VOID.-Held, that the effect of

declaring certain parts of the amended law of 1875 unconstitutional and void, is to leave in full force the sections of the law of 1861 which the act of 1875 attempted to amend and repeal. IDEM-COMPETENCY OF A JUROR.-The question as to what expression of opinion or belief as to the guilt or innocence of the defendant will disqualify a juror discussed. Ileld, that the sum and substance of this whole question is, that a juror must come to the trial with a mind uncommitted, and be prepared to weigh the evidence in impartial scales and a true verdict render according to law and evidence.

Argument for Appellant.

APPEAL from the District Court of the Ninth Judicial District, Elko County.

The facts are stated in the opinion.

Rand & Van Fleet, for Appellant.

I. The act of the legislature of the state of Nevada concerning juries in criminal cases, approved March 2, 1875, is unconstitutional and void. It conflicts with section 3 of article I of the Constitution of the state of Nevada. It conflicts with section 8 of article I of the Constitution of the state of Nevada. It is in derogation of common law and against reason and justice. It deprives a party charged with a capital or infamous crime of the right of trial by an impartial jury. (Secs. 3 and 7 Chitty's Black., book 3, 362 to 365; 13 N. Y. Court of Appeals, 425-427; 7 Nev. 157; 2 Parker's Crim. Rep. 402; 41 N. H. 551; 11 Cal. 175; 43 Cal. 331; 1 Bishop's Crim. Pr., secs. 908, 909; 1 Bouvier's Law Dictionary, sec. 771; 1 Bishop's Crim. Pr., secs. 897-900, 910, 911, 912; 43 N. J. 33; 7 Cow. 108.)

II. The defendant's right to a peremptory challenge is a special privilege, and he is not compelled to exercise that privilege upon a juror who is disqualified by law. (16 N. Y. Court of Appeals, 505; 40 Cal. 248.)

III. Due process of law, as understood by the framers of the Constitution, means a substantial right as distinguished from a mere matter of form. Due process of law at the time of the adoption of our Constitution, according to popular acceptation and its legal significance by a long course of adjudications, meant the right of a person charged with a felony to a trial by an impartial jury, drawn from the body of the people, within the jurisdiction of the court trying the cause. That when so selected the jurors should be composed of such material as would constitute a good common law jury; a jury according to the general acceptance of the term at the time of the adoption of the Constitution; a jury according to the law of the land, as generally understood and accepted at the time. (1 Kent's Com. 624; note, page 626; 4 Hill, 140; 13 N. Y. Court of Appeals, 392-3, 416-17; 55 Ill. 280; 8 Gray, 342-50; 48 N. H. 57.)

Argument for Respondent.

IV. The legislature may prescribe the mode of obtaining a jury, but it cannot, under the pretext of regulating the manner of obtaining and impaneling a jury, deprive a party of a substantial right guaranteed by the Constitution. (7 Cal. 16; 3 Nev. 341; 53 N. Y. 164; Eason v. State of Tennessee.)

J. R. Kittrell, Attorney-General, for Respondent.

I. The "right of trial by jury" simply means that one accused of a violation of the criminal enactments of this state shall have the privilege of being tried for the offense imputed to him by a jury of twelve men, selected according to the requirements of law, and who possess those qualifications which the law of the state provides they shall possess, in order to be legally constituted jurors to try a criminal case.

While I am prepared to admit that by the terms of the state constitution all the essential and material elements of a trial by jury, as they were established and existed at common law, were guaranteed to the citizens of this state, I am not willing to concede that the framers of our funda⚫ mental law intended to strip the legislature of the right to adopt forms and to make all needful rules and regulations whereby that ancient and peculiar form of trial might be extended to a citizen charged with an infraction or violation of any part of the criminal code.

I claim that the statute of 1875, now in question, merely points out the mode of securing the trial by jury—this and nothing more; and this being its sole object, and only aim and purpose, it is not only constitutional, but clearly within the power of the legislature to enact it. (Dowling v. State of Mississippi, 5 S. & M. 681; Jones v. State, 1 Ga. 610-619; Waller v. People, 32 N. Y. 147; Warren v. Com., 37 Penn. 45; Hartzell v. Com., 40 Penn. 462.)

II. The law, as amended, is in no sense repugnant to the Constitution, because it does not deprive a defendant charged with the grade of crime therein specified of his right of trial by jury; on the contrary, the very object of its enactment was to point out the modus operandi by which that right should be secured to him.

Opinion of the Court--Hawley, C. J.

Trial by jury cannot be dispensed with in criminal cases, but it is obviously within the scope of legislation to regulate such trial. (32 N. Y. 159.)

III. A trial by jury is understood to mean, ex vi termini, a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before. a legal conviction can be had. (2 Story on Const., sec. 1779.)

IV. Every legal presumption is in favor of the constitutionality of an act of the legislature. (Respublica v. Duquet, 2 Yeates, 493; Com. v. Smith, 4 Binn. 123; Bank v. Smith, 3 S. & R. 68; Eakin v. Raub, 12 S. & R. 340; Com. v. Zephon, 8 W. & S. 382; Sharpless v. Mayor, etc., of Philadelphia, 9 Harris, 147.)

By the Court, HAWLEY, C. J.:

The defendant was indicted, tried and convicted of the crime of rape.

Upon the trial, when the court ordered the clerk to draw from the box containing the list of trial jurors thirty-six persons, the defendant, by his counsel, excepted to the order upon the ground that the act of the legislature of this state entitled, "An act to amend an act entitled 'An act to regulate proceedings in criminal cases in the courts of justice in the territory of Nevada,' approved November twenty-sixth, eighteen hundred and sixty-one" (approved March 2, 1875), under which said jury was so ordered to be drawn, is unconstitutional and void, for the reason that said act deprives a party accused of crime of the right of trial by a fair and impartial jury. That under the provisions of said act, a person accused of crime may be deprived of his life or liberty without due process of law, in this, that said act does not allow a defendant charged with a felony to challenge a juror for actual bias; nor does it allow such defendant to challenge a juror for having formed or expressed an unqualified opinion as to defendant's guilt. Thirty-six names were then drawn from the box, and being examined as to their actual state of feeling towards the defendant, and all matters from which a bias against the defendant might be inferred, as by

Opinion of the Court-Hawley, C. J.

said act allowed, fourteen of the thirty-six jurors upon their voir dire stated that they knew, or had heard the facts in the case, and had formed and expressed an unqualified opinion that defendant was guilty of the crime charged. Ten out of the fourteen said they were biased and prejudiced against the defendant. Four of this number said they could not give defendant a fair and impartial trial, and one of them stated as a reason for his bias and prejudice, in addition to his opinion upon the facts, that he had had a personal difficulty with defendant.

To each of the fourteen jurors the defendant interposed a challenge for implied bias, for having formed and expressed an unqualified opinion of the guilt of the defendant; and also, for actual bias for entertaining such a state of mind toward the defendant as would prevent said juror from giving defendant a fair and impartial trial. Each and every challenge so interposed was overruled by the court, and the ruling excepted to by defendant. The state and the defendant then, in pursuance of the provisions of said act, each challenged peremptorily one juror alternately until each had taken twelve peremptory challenges. Thereupon the court ordered the clerk to swear the remaining jurors to try the cause, to which order defendant excepted and assigned the same reasons as were stated in his objections at the commencement of the trial, and the further reason that there were two among the jurors that were ordered to be sworn to try this cause, who had expressed themselves as being actually biased against the defendant, and had formed and expressed an unqualified opinion that defendant was guilty, and that the defendant had been denied the right to challenge off said jurors from the panel. These objections were overruled, defendant excepting.

The validity of the act is the only question presented for our decision upon this appeal. It will be observed that the act changes the law of 1861 in two important particulars. First. It leaves out any ground of challenge: "For the existence of a state of mind on the part of the juror in reference to the case which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he