Opinion of the Court-Hawley, C. J. The real questions submitted to the supreme court for decision were, whether a man who had formed and expressed an opinion that defendants were guilty was, in judgment of law, an impartial juror; and whether the challenge should have been, as it was, for principal cause, or to the favor. In the argument of the case it was admitted that every citizen, whether arraigned for crime or impleaded in a civil action, is entitled to a trial by a fair and impartial jury. The court say: "The trial by jury is justly considered an invaluable privilege; but it would become a mockery if persons who had prejudged the case were admitted as impartial triers. All the elementary writers, with the exception of Chitty, lay down the proposition broadly, that if a juror has declared his opinion beforehand it is a good cause of challenge." (7 Cow. 108.) After reviewing the authorities, Woodworth, J., in delivering the opinion says: "Upon the reason of the thing, the authority of adjudged cases, and the general understanding of the bench and bar, I have no doubt that the law is not chargeable with such injustice as to warrant the admission of a juror who, from a knowledge of the facts, or information derived from those who knew the facts, shall have formed or expressed an opinion." In the course of the opinion the judge says it will not be pretended that any members of the grand jury who found the indictment, or any of the jurors who sat on the former trial, would be admissible, and that he could not discriminate between those jurors and the juror Norwood, who had formed as decided an opinion on the merits of the case as any of them. "Can it be for a moment supposed, that a man who had formed such an opinion as Norwood had could stand indifferent or impartial?" It was decided that "the statutory provision authorizing the challenge of a grand juror, who shall be called on the petit jury to try the same indictment, is clearly in affirmance of the common law; and proves that when a man has formed an opinion, even upon an ex parte hearing, it is a valid exception to him; a fortiori, the objection is conclusive if the juror has formed an opinion upon hearing the whole case, * * * the wisdom of the law has always require Opinion of the Court-Hawley, C. J. the trial without prejudice or partiality as respects either party." It was also decided that the law presumes that the expression of an opinion on the merits of a case indicates bias, or that the mind of the juror is decidedly unfavorable to the defendant, and that such expression of opinion is a principal cause of challenge. In the case of The People v. Allen it was decided by the Court of Appeals that "it is the right of a prisoner to be tried by an impartial jury, and the juror must be indifferent both as to the person and the cause to be tried." (43 N. Y. 33.) Upon the common law rule the court, in the case of The Commonwealth v. Hussey, granted a new trial; it appearing that two of the jurors on the trial had been of the grand jury which found the indictment; the court observing, "that if these jurors attended to their duty when upon the grand jury, they could not have been impartial on the trial.” (13 Mass. 221.) In Perry v. The State, supra, it was contended that an act of the legislature providing the mode of selecting jurors was unconstitutional. Counsel for the defendant argued that as the drawing of jurors by lot became a part of the law of England before the revolution, that it was therefore a part of the law of this country at that time, and was universally practiced. The court correctly held that the manner of designating the persons who were to act as jurors at any term of court was clearly within the control of the legislature, and that the constitutional right to a jury trial was not impaired merely because the statute required that the jurors had been selected instead of drawn; and in deciding this question the court say: "We think that in order to preserve the right of trial by jury, it is not necessary to preserve any particular mode of designating jurors, even though such mode may have been in force at the time of the adoption of the constitutional provision. All that the right includes is a fair and impartial jury, not the particular mode of designating it." In Gibbs v. The State the court say: "The Constitution secures to the accused, in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of Opinion of the Court-Hawley, C. J. the county or district in which the crime shall have been committed." (3 Heiskell, 76.) To the same effect are the decisions in our own state. "That all persons held on a criminal charge," say the court in Ex parte Stanley, "have the legal right to demand a speedy and impartial trial by jury, there can at this time be no doubt. The right was guaranteed to the English people by the great charter; it has been confirmed in subsequent bills of right, iterated and reiterated by the courts, and defended and protected by the representatives of the people with jealous care and resolute courage. In this country the same right is generally guaranteed by the constitutions of the respective states, or secured by appropriate legislative enactments." (4 Nev. 116.) But returning to the decisions directly upon the point whether a defendant in a criminal action has the constitutional right to challenge a juror for cause, for having formed or expressed an opinion of defendant's guilt, or to challenge a juror for actual bias, for entertaining a prejudice against the defendant. In Fleming v. The State, the defendant had been tried and convicted of the crime of arson. At the trial, his counsel challenged a juror for cause, and in support of the challenge asked him whether he was not one of the Milford committee at the time that Fleming was arrested, "and did you not counsel and direct that he should be kept in custody without a warrant, for some ten days; and was there not an agreement between the members of that committee, to indemnify each other against any prosecution that Fleming might institute against them for said imprisonment; and do you not consider his conviction in this case as necessary to you and your associates' protection from such prosecution ?" The lower court considered the question irrelevant, and refused to allow it to be answered. On appeal, the supreme court say: "We think the court erred in refusing to allow the juror to answer. If the facts assumed in the question existed, they established such a relation between the juror and the defendant as was scarcely compatible with that impartiality which should characterize a juror. * * That * Opinion of the Court-Hawley, C. J. a juror has formed an opinion is one ground of challenge; that his relations or feelings toward the objecting party are such that he would not be likely to form an impartial one in the jury-box, is another. The following may be deduced from the authorities as grounds of challenge for cause. There may, perhaps, be additional ones: 1. That the juror is interested in the pending, or a similar suit. 2. That he does not possess the statutory qualifications. 3. That he is of kin to one of the parties. 4. Personal hostility. 5. A pending lawsuit between the juror and the party. 6. That the juror is master or servant, landlord or tenant, of the opposite party, or has eaten or drank at his expense since being summoned as a juror, or has promised to find a verdict for him. 7. That he has formed or expressed an opinion in the cause, is a witness in it, or has been a juror on a former trial of it." (11 Ind. 235.) How far the ground of challenge for having formed or expressed an opinion in the cause, can be regulated by the legislature without impairing the constitutional right of a trial by a jury of twelve impartial men, may be inferred from what is said by the court of appeals in Stokes v. The People, supra. It was there claimed by counsel for the defendant, that the jury law of New York was unconstitutional. The law provides that the previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in regard thereto, shall not be a sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve as a juror upon the trial of such action, provided the person proposed as a juror, who may have formed or expressed or has such an opinion or impression as aforesaid, shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously Opinion of the Court-Hawley, C. J. formed opinion or impression will not bias or influence his verdict; and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. The court held the law to be constitutional. In the opinion delivered by Grover, J., it is distinctly announced that “any act of the legislature providing for the trial otherwise than by a common law jury composed of twelve men, would be unconstitutional and void; and any act requiring or authorizing such trial by a jury partial and biased against either party, would be a violation of one of the essential elements of the jury referred to in and secured by the constitution." After quoting the provisions of the statute, the court say: "It will be seen that the intention of the act was not to place partial jurors upon the panel, but that great care was taken to prevent that result. The end sought by the common law was to secure a panel that would impartially hear the evidence, and render a verdict thereon uninfluenced by any extraneous considerations whatever. If the person proposed as a juror can and will do this, the entire purpose is accomplished. To secure this, the statute requires that he shall make oath that he can do this, irrespective of any previous or existing opinion or impression. Not that this may be safely relied upon, on account of the difficulty of determining, by a person having an opinion or impression, how far he may be unconsciously influenced thereby, the statute goes further, and provides that the court shall be satisfied that the person proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. Surely this latter provision, if rightly and intelligently administered by a competent court, will afford protection to the accused from injury from a partial jury. But the accused has not only this, but the further protection in his right, after challenge for principal cause has been overruled, again to challenge for favor, and have this tried and determined, uninfluenced by the decision made by the former challenge. While the constitution secures the right of trial by an impartial jury, the mode of procuring and impanelling such jury is regulated by law, either common |