MORGAN,

MARCH TERM, *1795.*

#### State *v.*Greenwood.

After a verdict, in an indictment, it is too late to object that one of the juror* wasnota freeholder in this State. If U appears upon another trial of the same cause, in which the perjury is assigned, to have been committed, that the person convicted did not swfar falsely in the first trial of the cause, a new trial will be granted him upon that ground.

He was indicted of perjury, and convicted ; and bis Counsel moved for a now trial, upon the ground that,one of the jurors was riot a freeholder in this Slate. The juror had been examined before he was sworn on the jury, whether he was a freeholder or not, and answered in the, affirmative. The fact is, that he was a freeholder in South-Carolina, but not in this State. This appeared by the affidavit of the juror himself, now produced in support of the motion.

Judge Macay — i think this is a case that deserves consideration. 1 have understood this objection has formerly prevailed in a civ ii case, at Hillsborough, in tin ejectment cause in which General *Butler*was Defendant.

Judge Haywood — ! will give no judicial opinion, having preferred this indictment whilst Attornev-General. "Were I to give one, I should not hesitate to decide against the objection — he might have taken iiis exception to the juror before be was sworn; that is the time the law appoints for him to take it ; and in this, as in all other cases, when the objection is not made at the appointed time, and the parties proceed to other stages, which in point, of order are posterior, they can never afterwards be allowed to recur to the advantage they have passed; as if a Defendant pleads in disability of the Plaintiff, lie admits the jurisdiction of the Court; if iie pleads to tiie Court, he admits the ability of the Plaintiff; if he pleads to the writ, he admits the form of the Court to be good; if he pleads in bar, he waives all pleas in abatement'; if he is to plead to a *sci.fa.*he cannot defend himself by any matter of defence lie might have used in the first action. So it is w ith respect to challenges — if the party will not take his challenge before he is sworn, he can never afterwards challenge for a cause existing before he was sworn. Vide *Trials per pais,*142, 145. 3 *Burr.*1858. Were a Defendant allowed to take bis challenge to the jurors after the trial, he never would do it before, but would always rather depend upon moving it to the *163Court after trial — for if be should be acquitted, he would say nothing about the disqualification of *he juror; and if convicted, he could avoid judgment by offering his objection. This in fact would be pl.ving him in a situation totally exempt from danger and from punishment, so long as he could get a juror sworn against whom lie could offer any legal objection, and would give him''the additional advantage of set eral chances for his acquittal. There is a case in Leach, which comes nearly e-noughto the present to shew the principle I have spoken of. There (he officer that returned the jury, was the prosecutor of the indictment, and consequently the whole array was liable to be quashed had the Defendant made the objection at the proper time — he however put himself upon bis trial without taking the exception, and was convicted; he then offered to take the exception, hut. the Court held it then too late to take it, and overruled the exception. The cause was adjourned for further consideration. See 5 *Bac. M.*245, *7 Mo.*54, *Halt*235.

Note. — This motion came on at a subsequent term, before Judge Ashe and Judge Macay, and they disallowed the exception, but delayed giving judgment for another cause ; and at September term, 1796, the cause being tried, in which the perjure was alledged to have been committed, before Judge Williams and Judge Haywood, and they being of opinion, from the oaths of several witnesses, sworn on that trial, concurring in the same fact that *Greenwood*had formerly sworn to in the trial of the same cause in the County Court, that probably it was not falsely sworn by him ; they thought this might be a proper cause for a new trial, and granted a new trial accordingly on that ground.

Note. — The objection with respect to tire juror, would have been a good one if taken at the proper time. *Sheepshanks & Co.*v. *Jones,*2 *Hawks,*211 But after the verdict it is too late. *State*v. *McEntire,*2 *Car. Law Rep.*287, *State*v. *Ward,*2 *Hawks,*443.