Selection of the names of jurors from the poll list instead of the tax list is not error, in the absence of a showing that different names were selected than would have been selected from the tax list.38 A violation of the statute providing that no elector's name shall be placed in the jury box by the jury commissioners who has served upon a regular panel within the 12 months last past will render the person whose name was thus improperly placed in the box subject to challenge for cause when called upon to serve the second time.39 A challenge of a juror on the ground that he has served as a juror in a court of record during the year next preceding the trial is not good, unless it is shown that the juror actually sat in the trial of a case.10 A person who has previously served as a juror in a court of record during the same year, though as a talesman, is disqualified, and a challenge to him should be sustained,11 unless his service has been merely during the same term of court.42 The term of service of petit jurors is fixed at two weeks, and no juror is eligible for longer service, unless the court enters an order in the journal that it is of the opinion that the jury business can be concluded within six days, except in cases where jurors are engaged on the trial of causes in the district court, cannot thereby disqualify him from serving as such juror. State v. Lowe, 44 P. 20, 56 Kan. 594. The mere showing that persons called as jurors did not pay taxes on personal property the preceding year does not prove that they were disqualifie l as jurors, where it does not appear but that they may have been on the assessment rolls of real property. State v. Reed, 37 P. 174, 53 Kan. 767, 42 Am. St. Rep. 322. Where a juror's name does not appear on the assessment list of his township for the year preceding that of the drawing of the jury, he having paid taxes on land for that year, but not having been assessed on his personal property, a challenge to him on that ground is improperly overruled. State v. Arnstein, 59 P. 602, 9 Kan. App. 697. 38 Maddox v. State, 12 Okl. Cr. 462, 158 P. 883. 39 Fooshee v. State, 108 P. 554, 3 Okl. Cr. 666. 40 State v. Lowe, 44 P. 20, 56 Kan. 594. That a person has "served once already on a jury, as a talesman, on the trial of any cause," is by statute a principal ground of challenge, and it was error to overrule challenges on that ground. Atchison, T. & S. F. R. Co. v. Snedeger, 49 P. 103, 5 Kan. App. 700. 41 City of Kansas City v. Kirkham, 59 P. 675, 9 Kan. App. 236. 42 Irwin v. Irwin, 41 P. 383, 3 Okl. 184. in the trial of a case; but it is necessary for a juror to serve actually two weeks before he is ineligible for future service at the end of the term for which he is selected.43 A juror should not be permitted to sit on successive cases involving the same persons or facts.** The question of the competency of an individual juror in a criminal case relates to the time he is impaneled and sworn to try such case.1 45 The fact that persons drawn as jurors were served with process on Sunday, and were excluded from the court room while other jurors were being examined as to their qualifications, does not disqualify them for jury service. 46 Where one selected as a juror from the tax rolls is a minor at the time of selection, but becomes of age and a qualified elector before he is impaneled, it does not deprive defendant of an impartial jury, as guaranteed by the Constitution.* 1166. Waiver of objection A ground of disqualification of a juror, which is discovered before or during the trial, is waived by failure to object until after the verdict.48 A party is compelled to use all reasonable means to discharge all 43 Stuard v. State, 116 P. 204, 6 Okl. Cr. 94, denying rehearing 114 P. 1133, 5 Okl. Cr. 686. 44 Jurors impaneled to try a defendant for larceny might be challenged for actual bias, where, on day before they had convicted him of forgery on evidence involving certain issues of fact in instant trial, and where same witnesses would be called to give same testimony on same issue, as they were not "impartial," within Oklahoma Constitution and Rev. Laws 1910, § 5858. Temple v. State, 15 Okl. Cr. 176, 175 P. 733. Accused was tried for rape November 29th, and, over his objection, five of the jurors, who tried and convicted on November 5th a companion of accused for a rape committed at the same time in the former case, were permitted to sit in his trial, several of them after he had exhausted his peremptory challenges. Held error. State v. Hammon, 113 P. 418, 84 Kan. 137. 45 Brown v. State, 14 Okl. Cr. 609, 174 P. 1102. 48 Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820; Horton v. State, 136 P. 177, 10 Okl. Cr. 294; Humphrey v. Same, 11 Okl. Cr. 287, 146 P. 230; Moore v. State, 111 P. 822, 4 Okl. Cr. 212; Queenan v. Territory, 71 P. 218, 11 Okl. 261, 61 L. R. A. 324, judgment affirmed 23 S. Ct. 762, 190 U. S. 548, 47 L. Ed. 1175; Robinson v. Territory, 85 P. 451, 16 Okl. 241, judgment reversed 148 F. 830, 78 C. C. A. 520. objectionable jurors before the commencement of the trial, and a failure to do so must be construed as a waiver of all known objections.49 Where, after part of the evidence was in one of the jurors was excused because of sickness, the objection to continuing the trial with part of the same jurors who had heard part of the evidence. is one which could be waived by defendant.50 If the statute providing that no elector's name shall be placed in the jury box by the jury commissioners, who has served upon a regular panel within the 12 months last past, is violated, and a person whose name is improperly placed in the box is not challenged for cause when called upon to serve the second time, his competency cannot afterwards be raised.51 A person charged with a misdemeanor may waive the drawing of a jury from the box.52 § 1167. Order of challenges "The plaintiff first, and afterward the defendant, shall complete his challenges for cause. They may then, in turn, in the same order, have the right to challenge one juror each, until each shall have peremptorily challenged three jurors, but no more." 953 Each of several defendants jointly tried is entitled to the full number of peremptory challenges allowed a single defendant; and the right is not lost by failure to demand a separate trial.54 All challenges to the array upon the ground that the jury was not selected, drawn, or summoned according to law must precede those made to the poll for favor, undue influence, or prejudice.55 49 State v. Stockman, 58 P. 1032, 9 Kan. App. 422. The court cannot increase the statutory number of peremptory challenges. Denham v. State (Okl. Cr. App.) 192 P. 241. 54 State v. Stokley, 128 P. 189, 88 Kan. 381. Where two defendants each have independent defenses, each may be allowed three peremptory challenges. Healer v. Inkman, 146 P. 1172, 94 Kan. 594. 55 State v. Wright, 25 P. 631, 45 Kan. 136; Same v. Eigle, 25 P. 632, 45 Kan. 138. After the regular panel of jurors had been exhausted in a trial for a misdemeanor, and the sheriff had commenced to select the talesmen, defendant § 1168. Challenges for cause The enumerated causes of challenge to a juror provided in the statute are not exclusive.56 A liberal latitude should be given the defendant in the examination of jurors on their voir dire. The purpose of such examination is to ascertain whether there are grounds for a challenge for actual or implied bias and to enable the defendant to exercise intelligently his peremptory challenges.57 The extent of the examination of jurors on their voir dire is in the sound discretion of the court, and will not be interfered with unless an abuse is shown.58 In order to justify sustaining a challenge to a juror on account of a suspicion of prejudice, it must appear from his examination that there is just cause therefor.59 objected to the sheriff or his deputies making the selection because of the interest they might have in the result. The court, with the consent of both parties, then named the talesmen, and among those so named was one who had been previously selected by the sheriff. The defendant exhausted his last peremptory challenge upon this talesman. Held, that the action of the. court was not cause for a new trial. State v. Plum, 31 P. 308, 49 Kan. 679. Where, in a criminal case, to correct errors in overruling challenges to jurors for cause, the district court, after the jurors had been challenged peremptorily, allows such challenges to stand as challenges for cause, and allows the defendant other peremptory challenges in their stead, which he duly exercises, the departure from the prescribed order does not constitute miscon duct in law, and substantial prejudice must appear to warrant a new trial. State v. Bonar, 81 P. 484, 71 Kan. 800. 56 Johnson v. State, 97 P. 1059, 1 Okl. Cr. 321, 18 ann. Cas. 300; Rev. Laws 1910, § 5861. 57 Temple v. State, 175 P. 733, 15 Okl. Cr. 176. That jurors stated on their voir dire that they had formed no opinion as to defendant's guilt or innocence, and could and would be impartial, was wholly immaterial, as in view of Rev. Laws 1910, § 5861, relating to formed or expressed opinions, they could not be judges of their own impartiality. Temple v. State, 15 Okl. 176, 175 P. 733. Question to juror who stated that he had heard deceased had made a dying statement as to whether he had an opinion that deceased believed that she would not recover was improper, where he was not acquainted with deceased. State v. Smith, 103 Kan. 148, 174 P. 551. Question, on voir dire examination by defendant's counsel, as to whether defendant's intoxication and threat against deceased six months before crime would be evidence in juror's mind of his guilt, was improper. State v. King, 165 P. 665, 101 Kan. 189. 58 Swift & Co. v. Platte, 74 P. 635, 68 Kan. 1. 59 Union Pac. Ry. Co. v. Motzner, 55 P. 670, 8 Kan. App. 431. All of a juror's answers on examination on his voir dire, and not portions only, must be looked to in order to ascertain his fitness to sit as juror.60 Contradictory answers of a juror concerning his qualification do not necessarily prove his unfitness, and if, after proper instruction by the court, he appears to be competent, it is not error to overrule a challenge based upon such answers.61 It is error in a voir dire examination of jurors in personal injury cases to permit counsel for plaintiffs to ask questions which unnecessarily suggest to the jurors the fact that defendant is insured in an accident company which will pay the attorneys defending and also any judgment resulting from accident to employés of defendant.62 Where a juror called in a prosecution for murder stated that he had previously sat in a murder trial, counsel for accused could ask him what the verdict was in that case in order to exercise intelligently a peremptory challenge." 63 Where a juror states he has an opinion, the accused should be given an opportunity to examine him fully as to the extent of his opinion.64 Where a juror's fairness and impartiality is questioned, the trial court must be clearly satisfied that he is fair and impartial, and must resolve all doubts in favor of the defendant.65 A juror should be excluded unless the court is clearly satisfied of his fairness and freedom from prejudice against accused. The issues raised upon a challenge for cause to a juror in a criminal case, on the ground of his formed and expressed opinion based upon rumor, common notoriety, and statements in public journals, is one of mixed law and fact.67 60 State v. Daugherty, 65 P. 695, 63 Kan. 473. 61 State v. Labore, 103 P. 106, 80 Kan. 664. 62 Swift & Co. v. Platte, 72 P. 271, 68 Kan. 1, judgment reversed 74 P. 635, 68 Kan. 1. 63 Johnson v. State, 97 P. 1059, 1 Okl. Cr. 321, 18 Ann. Cas. 300. 64 Scribner v. State, 108 P. 422, 3 Okl. Cr. 601, 35 L. R. A. (N. S.) 985. 65 Temple v. State, 15 Okl. Cr. 176, 175 P. 733. 66 Johnson v. State, 97 P. 1059, 1 Okl. Cr. 321, 18 Ann. Cas. 300; Scribner v. State, 108 P. 422, 3 Okl. Cr. 601, 35 L. R. A. (N. S.) 985. 67 Pope v. State, 15 Okl. Cr. 162, 175 P. 727; Stone v. State, 12 Okl. Cr. 313, 155 P. 701; Gentry v. State, 11 Okl. Cr. 355, 146 P. 719. |