Cowles v. Buckman

Woodward, J. — We should regardlit as the province of the court and its officers, to impannel a full jury ; and that when a party is asked if he has any objection to the jury, it refers to the persons constituting it, and whether he has challenges to make; and we should not be inclined to hold him responsible for the right constitution of the jury, in point of numbers. The law tenders him a jury for the trial of his cause, and he is not to be charged as with a fault, if the proper officer has not performed his duty in [163] this respect. If there were anything indicating a previous knowledge, and consequently a waiver implied from his not objecting, the case might be different, but it is agreed that neither party knew of the defect, and therefore, there' was no waiver. This is regarded as a fatal defect in criminal cases, without hesitation. Such was Jackson v. The State, 6 Blackf., 461. And it is not easy to state a reason why the rule shmild be different in civil causes, when there is no waiver, either express or implied. There are several cases in which the objection prevailed; Ross v. Neal, 7 Monr., 407, is one. In this case there were thirteen jurors, and the supreme court said it would have been fatal, if the party had taken exception in the court below, as by moving for a new trial; but that he could not first take it in that court, but said that if there had been a deficit, it might have vitiated the verdict, as no verdict. In Dixon v. Richards, 2 How., (Miss.), 771, the court says, “a jury must consist of twelve. No other number is known to the law. Here there were but eleven. The judgment must be reversed.” In Wolfe v. Martin, 1 How., (Miss.), 39, there were thirteen jurors, and a motion for a new trial was overruled. The supreme court reversed the judgment. In Tillmon v. Ailles, 5 S. & M., 368, it was held not to be fatal that there were thirteen jurors, but the court said, a verdict by a less number than twelve in issues of this kind would be void, but a verdict by a greater number than twelve is not so on that account.” Ayres v. Barr, 5 J. J. Mar., 287. In this case, there were eleven jurors. In Oldham v. Hill, 5 J. J. Mar., 300, there were less than twelve. It was on a writ of inquiry. See, also Graham & Wat., on New Trials, 169, 70, and 210, note; Duncomb’s Trials, per pais, 92, 3; Foote v. Lawrence, 1 Stew. 483; Tums v. Commonwealth, 6 Met., 224; Kennedy v. Williams, 2 Nott. & McC., 79. There is no doubt but that such defect may be waived, but before this can be inferred, it must appear, at least, that the party had knowl [164] edge of its existence. Without this, a waiver cannot be inferred. Tlie judgment will be reversed.