BILL NOT RETURNED IN OPEN COURT-HOW PROVED.-The recital in an indictment that "the jurors upon their oath present," etc., raises a presumption, when accompanied by the endorsement of "a true bill" signed by the foreman, that it was duly returned and presented in open court, and proof to the contrary can only be heard on plea in abatement made in apt time. Weaver, 104-758.

ENDORSEMENT OF TRUE BILL.-The endorsement on the back of an indictment "a true bill," raises a presumption that every member of the grand jury concurred in the finding of the bill. McNeill, 93-552.

DEFENDANTS NOT TO BE EXAMINED AGAINST EACH OTHER.-Where there are two defendants, it is improper to examine each against the other before the grand jury for the purpose of obtaining a true bill against both. Krider, 78-481.

WITNESSES NOT TO BE EXAMINED PUBLICLY.-A judge of the superior court has no right to require a grand jury to have the witnesses on the part of the state examined publicly. Branch, 68-186.

WITNESSES, HOW SWORN.-The statute simply gives an additional mode of swearing witnesses to testify before the grand jury, but does not abrogate the mode formerly prevalent of swearing them in open court. Allen, 83-680.

NEW BILL FOR SAME OFFENCE. WITNESSES EXAMINED.-Where an indictment is quashed and a new bill for the same offence sent and returned by the grand jury "a true bill," without a re-examination of the witnesses, the new bill should be quashed. Ivey, 100-539.

PRESENTMENT NEED NOT BE SIGNED.-A presentment need not be signed by any one; it is the returning of the indictment in open court and its being there recorded that makes it effectual. Cox, 28 (6 Ired.), 440.

Sec. 319 (1738). In capital cases judge may issue a special venire. c. 35, s. 30. 1830, c. 27, s. 1.

R. C.,

Whenever a judge of the superior court shall deem it necessary to a fair and impartial trial of any person charged with a capital offence, he may issue to the sheriff of the county in which the trial may be, a special writ of renire facias, commanding him to summon such number of the freeholders of said county as the judge may deem sufficient (such number being designated in the writ), to appear on some specified day of the term as jurors of said court; and the sheriff shall forthwith execute the writ and return it to the clerk of the court on the day when the same shall be returnable, with the names of the jurors summoned. Sec. 320 (1739) Special venire, how drawn and summoned.

Whenever a judge shall deem a special renire necessary, he may at his discretion, issue an order to the clerk of the board of commissioners for the county, commanding him to bring into open court forthwith the jury boxes of the county, and he shall cause the number of scrolls as designated by him to be drawn from box No. 1, by a child under ten years of age. And the names so drawn (being freeholders) shall constitute the special venire, and the clerk of the superior court shall insert their names

in the writ of venire, and deliver the same to the sheriff of the county, and the persons named in the writ and no others shall be summoned by the said sheriff. If the special venire is exhausted before the jury is chosen, the judge in his discretion may order another special venire to be drawn and summoned in like manner as the first, until the jury has been chosen. The scrolls, containing the names of the persons drawn as jurors from box No. 1 shall, after the jury is chosen, be placed in box No. 2; and if box No. 1 is exhausted before the jury is chosen, the drawing shall be completed from box No. 2, after the same shall have been well shaken.

CONSTITUTION.-Laws of N. C., 1885, c. 63. sec. 19, prescribing the mode for drawing a special venire for the criminal court of New Hanover, is substantially the same in effect as The Code, sec. 1739, and is not unconstitutional. Jones, 97-469.

WHERE JUROR HAS FORMED AND EXPRESSED AN OPINION.-Where a juror, on his examination, states that he had formed an opinion that the prisoner was guilty on report merely, and that it would require evidence to remove the impression, yet, he could, on hearing the evidence and the judge's charge, disregard the opinion, and the trial judge decides that the juror is indifferent, the decision of the court is unreviewable. Potts, 100-457.

A juror in answer to the question whether he had formed and expressed an opinion as to the guilt or innocence of the prisoner, said that he had, and the prisoner challenged him for cause, but the court suggested to counsel to ask whether the opinion expressed was that the prisoner is guilty, which counsel declined to do, and the challenge was disallowed: Held, no error, since it is incumbent on him who challenges to show that he is the party likely to be prejudiced. Efler, 85-585.

It is no good cause of challenge that a juror has formed and expressed an opinion adverse to the prisoner, such opinion being founded on rumor, when the juror states that he can try the case according to the law and evidence, uninfluenced by any opinion he may have formed from such rumor. Collins, 70-241.

OPINION BASED ON RUMOR.-One who states that he has formed and expressed an opinion upon defendant's guilt based upon rumors, but that he is not so prejudiced that he could not render a fair and impartial verdict, is a competent juror. Green, 95-611.

WHEN JUROR HAVING EXPRESSED OPINION, COMPETENT.-Where a juror says that he has formed and expressed the opinion that the prisoner is guilty, but that his mind is fair and unbiased, and that he can hear the evidence and render a verdict without being in any degree influenced by what he has heard or said, he is a competent juror. Kilgore, 93-533.

An exception to a finding that a juror is impartial can not be sustained where the juror declares that his adverse opinion had been founded on rumors and that he, after hearing the evidence, could render a fair and impartial verdict. DeGraff, 113-688.

Evidence that a juror had stated a few minutes before being called "that he could not serve because he had made up his opinion," will not entitle defendant to a new trial, because the first statement was not under oath and was contradicted by the oath of the juror who swore that he had not formed an opinion. Scott, 8 (1 Hawks), 25.

PAYMENT OF TAXES.-The judge when ordering a special venire may direct the sheriff to summon only freeholders who have paid their taxes

for the preceding year, who have not served on the jury within the past two years, who have no suits in court, and who are not under indictment. Codey, 119-908.

An objection that the special venire was summoned by the sheriff as prescribed by section 1738 of The Code instead of being drawn from the jury box as prescribed by section 1739 is untenable, since the latter method is discretionary. Smarr, 121-669.

A tales juror called on a trial in April, 1894, is not disqualified because he had not paid his taxes for 1893, he having paid them for 1892. Sherman, 115-773.

POLLING THE JURY.-On polling the jury, a juror responded, "Well, I suppose I must go with the rest," but when directed by the court to respond "guilty or not guilty," he answered "guilty": Held, proper to receive the verdict. Sheets, 89-543.

Where defendant is present when a verdict of guilty is returned against him but his attorney is absent, he can not demand a new trial as a matter of right on the ground that the jury was not polled, and if his attorney had been present he would have demanded that the jury be polled. The granting of such motion is in the discretion of the judge. Jones, 91654.

Both defendant and the solicitor for the state have the legal right to demand that the jury be polled. Young, 77-498.

After retiring, a proposition was assented to by the jury that the verdict of a majority should be returned as the verdict of the jury; another ballot was taken, some of the jurors still voting not guilty, but after further deliberation a verdict of guilty was returned. The jury was then polled and each responded guilty. During their deliberation the jury was allowed to separate, but were still under charge of officers of the court: Held, that defendant was not entitled to a new trial. Harper, 101-761.

Polling the jury is a privilege, but it is not error to receive the verdict without polling unless the defendant requests it in apt time. Best, 111638.

VARIANCE IN NAME.-Where the name of a juror summoned is J L B, and his name is entered on the scroll as J S B, the variance is immaterial. Mills, 91-581.

MATTERS NOT MATERIAL TO JUROR'S COMPETENCY.-Where a juror on his voire dire states that he had said it would injure any attorney politically with certain persons to appear for the prisoner, he can not be required to give the names of those persons, since such matter is not material to the question of the juror's indifferency. Mills, 91-581.

SPECIAL VENIREMEN MUST BE FREEHOLDERS.-The only qualification required of jurors summoned on a special venire is that they shall be freeholders. Kilgore, 93-533.

A tales juror must have the same qualifications as a regular juror with the additional one of being a freeholder. Sherman, 115—773.

MISCONDUCT OF JURY.-Where jurors purchased and drank whiskey and "some of them were under its influence" while deliberating on their verdict, the verdict returned by the jury was void, and a mistrial should have been granted to the defendant. Jenkins, 116-972.

NO APPEAL WHEN FACTS FOUND.-Where the trial judge finds the facts in regard to the alleged misconduct of the jury his refusal of a new trial on that ground is not reviewable. Fuller, 114-885.

IMPEACHING VERDICT.-The supreme court will not look into affidavits in support of a motion to set aside a verdict on account of the misconduct of the jurors, but will look only to the record presented, and when such

motion is designed to be submitted to their revision, the facts must be ascertained by the court and spread upon the record. Smallwood, 78-560. A juror can not be examined as a witness to impeach the verdict of the jury of which he was a member. Brittain, 89-481.

ORIGINAL PANEL MUST BE FIRST EXHAUSTED.-Resort can not be had to the special venire before the original panel is exhausted, including those who have been stood aside. Shaw, 25 (3 Ired.), 532.

CHALLENGE AFTER ACCEPTANCE BY PRISONER.-Where the incompetency of a juror is not ascertained until he has been passed to and accepted by the prisoner, the court may then allow a challenge by the state. Vann, 82— 631.

Where, a juror, already in the box, after he has been passed to and accepted by the defendant, rises and states that he has served on the jury within two years past, it is not error in the court to then allow a challenge by the state. Following State v. Jones, 80-415. Vestal, 82-563.

WHERE JURY IS OBTAINED BEFORE PEREMPTORY CHALLENGES EXHAUSTED.— Where a jury is obtained before the prisoner exhausts his peremptory challenges, an exception for error in overruling a challenge for cause can not be considered. Pritchett, 106-667.

PREJUDICE AGAINST COLORED PERSONS.-A colored person on trial for crime has a right to challenge a juror who "believes that he can not do impartial justice between the state and a colored person," and the cause of challenge, if sustained, is good. McAfee, 64-339.

FREEHOLDER.—A special venireman drawn for criminal court of New Hanover, under Laws 1885, c. 63, is not required to be a freeholder. Freeman, 100-429.

WHEN ERROR IN REFUSING CHALLENGE REMOVED.-Error in refusing to allow a challenge is removed when the juror is then peremptorily challenged, and the prisoner obtains a jury without exhausting his peremptory challenges. Freeman, 100-429.

SERVING ON JURY WITHIN TWO YEARS.-A juror of the original panel can not be challenged on the ground that he has served upon a jury in the same court within two years. Brittain, 89-481.

TENANT BY THE CURTESY.-A tenant by the curtesy initiate is a freeholder under the statute. Mills, 91-581.

CHALLENGE BY THE STATE AFTER PASSING. It is error to permit the state to peremptorily challenge a juror after he has been passed by the state and tendered to the prisoner. Fuller, 114-885.

SUIT PENDING.-A juror who has a suit "pending" but not "at issue” at the term at which he was drawn to serve is not disqualified. Smarr, 121— 669.

RELATIONSHIP OF JUROR.-The fact that the great-grandmother of a juror was the sister of the grandmother of the prisoner, brings the juror within the ninth degree of kinship to the prisoner, and he may be properly challenged by the state. Perry, 44 (Busb.), 330.

A juror related to the prisoner within the ninth degree may be properly rejected upon challenge by the state. Potts, 100-457.

Where it appears that the juror's wife was cousin to the prisoner's former wife, who is now dead, leaving no children, there is no cause of challenge, the affinity having ceased with her death. Shaw, 25 (3 Ired.), 532.

The fact that a juror is first cousin to the prisoner is no good cause of challenge by the prisoner, unless ill feeling or bad blood is shown to exist between them. Ketchey, 70-621.

WHEN JUROR AN ATHEIST.-It is not error to refuse a motion for a new trial after a verdict of guilty, on the ground that one of the jurors was an atheist, and that fact was not discovered until after verdict. A challenge for such cause not made before the juror is sworn, is deemed to be waived. Davis, 80-412.

WHEN PROSECUTOR QUALIFIED AS A JUROR.—A person is not disqualified as a juror, for the reason that he is the prosecutor in another criminal action to which the defendant has not pleaded. Brady, 107-822.

NON-RESIDENT JUROR.-The fact that a juror is not a resident of the county in which the indictment is tried, is a good ground for challenge, but not for a new trial after verdict is rendered. White, 68-158.

CAUSE ADMITTED-EFFECT OF ADMISSION.-Where the cause of challenge is admitted by the state, the prisoner is bound by his challenge, and can not afterwards have the matter tried. Creasman, 32 (10 Ired.), 395.

MISDEMEANOR.-A challenge for cause may be made in a trial for a misdemeanor. Fulton, 66-632.

CHALLENGE TO THE FAVOR.-A challenge to the favor is properly sustained where it appears that the juror is attending court, whether under subpoena or not, in the expectation of being called as a witness for the opposite party, and the danger of bias is not removed by showing that he has no knowledge of the material facts of the case, but expected to testify only as to the character of the defendant. Barber, 113-711.

AMENDMENT.-The trial judge, in his discretion, may amend an order for a special venire so as to increase or decrease the number. Brogden, 111656.

ALIENS, JURY DE MEDITATE LINGUAE NOT ALLOWED.-An alien is not entitled to a jury de meditate linguae in this state. Antonio, 11 (4 Hawks), 200.

COURT DECIDES AS TO QUALIFICATIONS-NO REVIEW.-The court is the judge of the qualifications of a juror, and its determination is not reviewable, and, in its discretion, it may permit a challenge by the state for cause after the juror has been tendered to defendant and before the jury is empaneled. Green, 95-611.

CHALLENGE TO THE ARRAY.-A challenge to the array on the ground that the prisoner is a person of color, and no person of his own color is summoned on the special venire, can not be sustained. The right to a jury de meditate linguae is not a principle of common law, and never obtained in this state. Sloan, 97-499.

The action of a trial judge in determining the qualifications of a juryman, if erroneous, is ground for challenge to the array by a motion to quash and set aside the entire panel, and, in the absence of such challenge a defendant can not be allowed to take advantage of the alleged error after trial and judgment. Moore, 120-570.

The fact that the sheriff's return to a writ for a special venire states that he had not summoned one juror because he was dead, and had not summoned three others because they could not be found, is no ground for a challenge to the array. Speaks, 94-865.

The integrity and fairness of the entire panel are not affected by the fact that one man named in the writ had removed from the county; that another was dead when the list was revised; that one was not summoned, nor by the fact that the sheriff, in copying the list omitted, by mistake, the name of one who in consequence was not summoned. Whitt, 113716.

The jurors were selected from a special venire summoned from the general jury list irrespective of their qualifications as freeholders, instead