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CHAPTER IX.

THE TRIAL.

3033. The nature and kinds of trial.
3034. The trial by jury.
3035. The trial list.
3036. Excuses for not going to trial.
3037. Continuances of causes.

3038. The proceedings in the course of the trial.
3039-3045. The jury.

3040. The selection of the jury.
3041-3044. The challenge of the jurors.

3041. Challenge to the array.
3042. Challenge to the polls.
3043. Principal challenges.
3044. Challenges for favor.

3045. The swearing of the jury.
3046-3052. Of opening the case.

3047. The right of opening.
3048–3052. The manner of opening.

3049. The statement of the plaintiff's claim.
3050. The statement of the evidence.
3051. The statement of the points of law.
3052. The anticipation of the defence.

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3032. By trial is meant the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause for the purpose of determining such issue.'

The matters in this chapter will be discussed under the following heads: the nature and kinds of trials, the trial list, the jury, and the opening of the case.

3033. When the cause has been brought to an issue, as above stated, the next step is to bring it to trial, so that a final judgment may be had upon it. If it be an issue in law, the trial is by the court. The case is then put on the argument list, and is decided by the judges alone, without the intervention of a jury; and the court also decides cases where the action is alleged to be founded upon a record, and the defendant has pleaded, nul tiel record, that there is no such record; whether such record exist or not is a question of fact, but it is a matter of law whether, if it do exist, it is sufficient in point of law to maintain the action of the plaintiff, so that, in truth, this is a question of law rather than of fact. But when the issue arises on a question of fact, it is to be tried by the court and a jury. For this purpose, the cause is ordered upon the trial list, agreeably to the provisions of the local statutes and the rules of the different courts. This list is a collection of cases which are at issue in matters of fact, and which are to be submitted to a trial before a court and jury.

Formerly, there were several kinds of trials in England, some of which have

1 Curtis v. Colston, 4 Mas. C. C. 232.

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been abandoned even in that country, and were never practiced in this; these are trial by witnesses, by inspection, by certificate, by wager of battle, and by wager of law.?

3034. The trial by jury, almost the only one for deciding issues in fact, has long received the unanimous panegyrics of the common lawyers as being the best safeguard of liberty, particularly in criminal cases; it is the greatest safety of a prisoner when there is much excitement, either as to the person to be tried, or on account of the accusation which is brought against him.

In many instances juries have been the bulwark of safety against the attacks of power. Jurors have been represented as being “twelve invisible judges, whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found until the moment when the balance of justice being placed in their hands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens.” Too much reliance cannot be placed upon this institution in criminal cases, and particularly in those which assume somewhat of a political character.

But although this high praise is justly deserved in criminal cases, this institution has been thought by some as not the best calculated to arrive at truth in civil actions.

It cannot be denied that many issues are presented for decision to juries who are entirely incompetent to comprehend them, and perhaps no judge or lawyer of much experience can be found who has not sometimes been shocked at the rendition of a verdict. This imperfection has been somewhat removed by the exercise in certain cases of the remedial power of granting a new trial.

Whatever its imperfections may be, the trial by jury seems to be firmly seated in the affections of the people, and will not probably be abandoned. By the constitution of the United States, it is secured and made to extend “to all suits at common law where the value in controversy shall exceed twenty dollars;" 5 and most of the state constitutions contain provisions that it shall remain as heretofore and be inviolate.

The right to a trial by jury is confined to proceedings in courts of common law, where legal rights, as distinguished from equitable, are decided upon.

3035. The trial list, it has been observed, is a collection of cases which are at issue and ready for trial. These are taken up in the order in which they are on the list, and, unless for a lawful cause shown to the court, they will be ordered for trial.

3036. The usual excuses alleged for not going on to trial are:

Because the cause has been improperly put upon the list in violation of law or the rules of the court, as if it be not at issue.?

Because there has been some fraud or artifice used to deprive the opposite party of some legal advantage to which he was entitled.

Because some material piece of evidence or a material witness cannot be had, after having used all lawful means to procure the same. In the case of an absent witness it must be shown that his testimony is important, and that every

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? See Bouvier, Law Dict. Trial.
: Livingston, Rep. on a Penal Code, 13; 3 Story, Const. & 1773.

Duponceau, Address at the opening of the Law Academy at Philadelphia. 6 U.S. Const. Amend. 7. The amount in controversy is decided by the ad damnum. Trees v. Rushworth, 9 Gray, Mass. 47.

& Stilwell v. Kellogg, 14 Wisc. 461; Plimpton v. Somerset, 33 Vt. 283; Heyneman v. Blake, 19 Cal. 579; Isom v. Mississippi R. R., 36 Miss. 300; Fire Department v. Harrison, 2 Hilt. N. Y. 455; Dronberger v. Reed, 11 Ind. 420. 7 Stratton v. Henderson. 26 Ill. 68. A continuance will be granted for surprise. Davis v. Millaudon, 14 La. Ann. 808.

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effort has been used by the party wanting his evidence to secure it; for this purpose a writ issued by the clerk or prothonotary of the court, under its express or implied authority, directed to the witness, commanding him to appear at the time and place of trial to testify, must be procured. It is called a subpoena. The party wanting the witness must have made an effort, within the time prescribed by the rules of court, to serve it upon the witness; or if the party knew the witness was going away, he should have taken his deposition under a rule of court, or a commission after he had gone. If he has neglected to take these necessary steps, the absence of the witness will not avail him. The law requires in all these cases that the party should use due diligence, and his neglect ought not to delay his adversary.'

Because a commission to take depositions has been issued and is outstanding. 10

Because the counsel employed by the party applying for a continuance cannot attend on account of sickness or other sufficient cause.

11 3037. The court in all these cases exercises a sound discretion, and will never force a party to a trial, who has used due diligence, and when, by compelling him to trial, injustice may be done.”

When a sufficient cause is shown, which must always be under oath or affirmation, either of the party himself or of some other person, the cause will be continued till the next term, a continuance being necessary at each term to keep the cause in court; but this continuance is seldom formally made, the causes being supposed to be continued without order of the court for that purpose.

If no lawful cause for a continuance be shown, but a temporary delay is required, the case may be put at the foot of the list, to be called again in its turn,

may be left open, that is, in a condition to be taken up as soon as a short absence of counsel or a witness shall cease, or a temporary cause of delay has been removed.

When there is no cause for such delay nor for a continuance till the next term, the case will be ordered for trial.

3038. The proceedings in the course of the trial are the calling of the jury, the opening of the case, the evidence, non-suit, signing bills of exceptions, demurrer to evidence, arguments of counsel, charging the jury, and rendering a verdict.

3039. By jury is understood a body of twelve men, selected according to

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Barnum v. Adams, 31 Mo. 532; Griffin v. Polhemus, 20 Cal. 180; Knowlton v. Smith, 17 Ind. 508. A promise by the witness to attend is no excuse for not serving him with a subpæna. Moore v. Goelitz, 27 . 18; State v. Cross, 12 Iowa, 66; Mackubin v. Clarkson, 5 Minn. 247.

The party applying for a continuance must state what he expects the absent witness to testify, that the court may judge of its materiality. The opposite party may admit that the witness would so testify, in which case the continuance is refused and the trial goes on, such admission going to the jury as part of the evidence. State v. Mooney, 10 Iowa, 506.

In Missouri, however, to warrant the refusal of a continuance, the opposite party must not only admit that the witness would so testify, but that his testimony is true. Murphy v. Murphy, 31 Mo. 322.

10 Cole v. Strafford, 12 Iowa, 345.

11 When an unexpected change of counsel takes place a continuance will be granted, that the new counsel may become acquainted with the case. Graves v. Rayle, 19 Ind. 83.

12 The granting or refusal of a continuance is, in general, within the discretion of the court, and from its decision no error or appeal lies, unless there has been a clear abuse of discretion. Holt v. State, 10 Ohio, St. 691 ; Holbrook v. Wilson, 4 Bosw. N. Y. 64; Childs v. Heaton, 11 Iowa, 271; Griffin v. Polhemus, 20 Cal. 180; Carpenter v. Meyers, 32 Mo. 213; Fowler v. Buckner, 23 Tex. 84; Pitts v. Gilman, 1 Head, Tenn. 549. But see Cochran v. Dodd, 16 Ind. 476; Bishop Colony v. Edgerton, 26 Il. 64. 18 Cleveland v. Hughes, 12 Ind. 512.

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law, for the purpose of deciding some controversy or issue on a matter of fact.“ Thé individuals of which the jury is composed are called jurors ; they are so denominated because they were formerly sworn to try the matters in issue. They still bear the same name, although many are now affirmed instead of being sworn.

In civil cases the jury never decide a question of law. They are merely to find the facts, and the court apply the law to them when so ascertained.

The origin of juries is hid in the night of time. It is highly probable that this institution was not always what it is now. From the earliest times, even before regularly organized constitutions were established, when disputes arose men must have been selected to decide them; these were generally the most ancient personages, or the neighbors, the equals or peers of the contesting parties. These tribunals were common among the people of the north of Europe, who invaded the southern kingdoms and states of that portion of the globe. Being found convenient, they were adopted by the nations invaded and substituted in the place of the ancient tribunals in Germany, France, England, and Italy. In most of these countries they disappeared by degrees, except in England. In that country trial by jury was established soon after the Norman conquest, and the institution was improved from time to time to what it is now. In the United States the mode of selecting juries and the institution itself have been greatly improved so as to secure a fair and impartial body of men, from

, whom the twelve jurors who are impanelled in any particular case are to be chosen.15

The principal qualifications of jurors are,
That they be sui juris,

Of full age,

Good and lawful men, that is, not of an infamous character, for a man whose oath could not be received as a witness, cannot be a juror,

Citizens of the United States,

Residents of the district, county, or other territory, over which the court has jurisdiction.

3040. The jurors for the trial of civil cases are selected by officers designated by the statutes of each state ; they are generally taken from among the electors for public officers in such numbers as the laws require.

A writ, called a venire facias, directed to the sheriff, commanding him to summon a certain number of jurors, is delivered to that officer in sufficient time to cause to be drawn the names of jurors, which are put into a box. By virtue of this writ he draws, with such officers as are authorized to act with him in this matter, the requisite number of jurors, summons them to attend court at the time appointed for holding a term, and returns the venire to the court whence it issued, together with a list of the jurors summoned, which list is called the array, because the jurors summoned to attend court are arrayed or arranged on the panel; this latter word, signifying a schedule or roll, contains the names of the jurors summoned by virtue of the writ of venire facias, and annexed to that

14 A jury ex vi termini means twelve men. Turns v. Commonwealth, 6 Metc. Mass. 231. And the privilege of trial by jury secured by the constitution means a trial by twelve men. Vaughan v. Scade, 30 Mo. 600. In some case a jury of a less number is summoned by the sheriff; as, to assess damages for laying out highways. This is known as a sheriff's jury. 3 Sharswood, Blackst. Comm. 258. A grand jury consists of not less than twelve, or more than twenty-four. A special jury is one selected by the parties alternately striking off one from a panel of forty-eight until twelve are left. "This is allowed by statute in some states. Whitehead v. State, 10 Ohio, St. 449.

15 Morin claims the institution of trial by jury to be of French origin. He says, “En remontant à l'ordre judiciaire des Grecs et des Romains, ainsi qu'aux institutions des peuples du Nord, on y découvre des germes de cette jurisdiction, appliquées aux contestations civiles; mais de toutes les nations modernes, la France peut révendiquer l'honneur d'avoir, la prémière consacré le jugement d'un accusé par ses pairs, (pares.) Cette institution, encore bien imparfaite, avait été transplantée en Angleterre lors de la conquête de ce pays par les Normands.” Dictionnaire du Droit Criminel, voce, Jureés–Jury.

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If from any cause there are not enough jurymen present to proceed with the trials, the court may order a new venire to summon in additional jurors, or may order the sheriff to summon a sufficient number of the bystanders (tales de circumstantibus) to complete the panel." Those summoned in the last manner are commonly called talesmen. The talesmen are summoned only for the single case then next to be tried. A new venire should be issued, if required, for the other

3041. At this stage of the cause, after the venire has been returned, and before any juror has been selected to try the particular case, either party may object to the whole panel or array of jurors ; 18 this objection or exception thus

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15 made to the jurors is called a challenge to the array. The principal causes for making this challenge are, that there has been some fraud, or some illegal act in drawing or returning the panel, for which the whole is vitiated. When the causes of the challenge are established by evidence to the satisfaction of the court, the whole array is set aside, and no trial can be had until another panel has been returned.

But when no motion has been made to set aside the array, and the party has done no act by which he waives his right to insist upon such a course, as by objecting to a particular juror who may be called to try his case, then the clerk of the court draws from a box, where all the names of the jurors have been put in separate slips of paper, the names of twelve of them. Each party has a right to challenge two or such other number as may be authorized by the local statutes without assigning any reason whatever, and as many of the others as he has a lawful reason for objecting to; this is called a challenge to the polls. Those challenges which may be made without assigning any reason are called peremptory challenges; those made for some legal reason are challenges for

3042. A challenge to the polls is an objection made separately to each juryman as he is about to be sworn. Challenges to the polls, like those to the array, are either principal or to the favor.

The juror must be challenged before he is sworn, and an objection taken after verdict is too late. 19

3043. Principal challenges are made on various grounds:

Propter defectum, that is, on account of some personal objection, as alienage, infancy, old age, or the want of those qualifications required by the constitution or legislative enactments.

Propter affectum, because of some personal, or actual partiality in the jury

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16 See Coke, Litt. 158, b. Where the officer charged with the duty of summoning the jury is interested in the case, the jury should be summoned by some other person. Pacheco v. Hunsacker, 14 Cal. 120.

17 Wallace v. Columbia, 48 Me. 436.

18 State v. Welch, 33 Mo. 33; People v. Moice, 15 Cal. 329. A challenge to the array must be to the whole panel, and is not good if the objection only applies to a part. Conkey v. Northern Bank, 6 Wisc. 447. Where a jury was claimed, none having been summoned, and the court ordered twelve bystanders to be summoned, the party objected to this unusual method, and then challenged some for cause, it was held a good jury. Suttle v. Batie, 1 Iowa, 141.

19 Steele v. Malony, 1 Minn. 347; Pittsfield v. Barnstead, 40 N. H. 477. Thus where a juror lived out of the county, this objection comes too late after verdict, it being presumed that the party was informed of the objection and waived it. Mt. Desert v. Cranberry Isles, 46 Me. 411.

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