' Supreme Court. Erie General Term.

May, 1867.

*DanielSi Marvin*and *Davis,*Justices.

#### Joel Lindsley, Plaintiff in Error, *v.*The People, Defendants in Error.

Where a defendant on a trial for crime is entitled to a peremptory challenge, the right continues until the juror is sworn.

On a trial for manslaughter, in which the defendant was entitled under the statute to five peremptory challenges, after eleven jurors had been drawn a person drawn ,as a juror was challenged by the defendant for principal cause and, after a trial of the challenge, it was overruled and the person declared competent to serve as a juror. The court then asked the prisoner's counsel if they challenged the juror peremptorily, and the counsel answered, “no.” The juror then took his seat in the box. After-wards, while the other jurors were being sworn, and before the juror in question was sworn, the counsel for defendant insisted upon the right of then peremptorily challenging the juror. *Held,*that the right of peremptory challenge still existed—that its exercise at that time was an absolute right and did not rest in the discretion of the court, and that it had not been waived by the previous answer of the defendant’s counsel, declining to challenge the juror—Mr. Justice Daniels dissenting.

*226Error to the Oyer and Terminer of Orleans county.

Joel Lindsley was tried at the Oyer and Terminer held in Orleans county in January, 1847, upon an indictment for manslaughter in the second degree; also in the third degree. He was convicted of manslaughter in the second degree. Humorous exceptions were taken during the trial. Those which are considered by the court are stated in the following opinion:

S. *E. Church,*for the plaintiff in error.

*J. M. Thompson*(District Attorney), for the defendant in error.

Marvin, J.

It appears from the bill of exceptions that the jurors, as they were severally called, were challenged by each side, and each juror was sworn and examined as to his competency. If found competent, and not peremptorily challenged, he took his seat in the box. Eleven jurors were thus seated, when Asa Baldwin was called, sworn and examined as to his competency to sit as a juror. He stated that he had heard of the case; had read an account of it in the papers, and, if true, he had formed an opinion; that he read the account, believed it, and .then formed an opinion. Question by the court: .“Have you now any fixed opinion upon your mind as to the guilt or innocence of the prisoner?” Answer: “I have not.” The court decided that the juror was competent; to which decision the prisoner’s counsel excepted.

The court then asked the prisoner’s counsel if they challenged the juror peremptorily, to which the counsel replied, “ no.” The juror then, by the direction of the court, took his seat with the eleven jurors in the box. Afterwards, and before Baldwin was sworn or commenced to be sworn, and while the other jurors were being sworn, the prisoner’s counsel insisted upon peremptprily challenging the said juror, the prisoner’s peremptory challenges not *227being exhausted; but the court decided not to allow the said challenge to be made, on the ground that the counsel for the prisoner had waived the right by refusing to do so when asked by the court if they would so challenge him, before the juror was directed to take his seat in the jury box. To this decision the counsel for the prisoner excepted. The juror was sworn as one of the jurors.

The prisoner was “entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more.” *(Sess. Laws*1847, *chap.*134, § 2.) It is claimed by the prisoner’s counsel that this right of challenge is absolute and continuous until the juror has been actually sworn, and that he cannot be prejudiced in this, right by anything said or done by him prior to such swearing. On the contrary, the position of the counsel for the people is that announced by the court at the trial, viz: that the right was waived by refusing to make the challenge when the counsel was asked by the court if they challenged the juror peremptorily. It was said upon the argument that no case in point, decided in this State, had been found. It seems that cases decided in other States are in conflict. I will hereafter notice them. Let us, for the present, consult the co'mmon law. By that there are many kinds of challenges which may be made by the party put upon his trial charged with crime", and the issue raised by the challenge is to be decided by the court, or by triers, depending upon the nature of the challenge. The cause or ground of the challenge is to be stated by the prisoner, and there is to be an inquiry to ascertain the truth of the alleged cause or grounds, and this is to be followed by a decision made by the court or the triers. But in addition, to. these challenges, and entirely independent of them, there is one very properly named *peremptory*challenge. When the prisoner has a right to make this challenge, the right is full and absolute. It does not depend upon any conditions or circumstances." The prisoner, in effect, says *228to the proposed juror, “ Stand aside'; I reject you as one of my triers.” By the common law this right only existed in capital cases, but those cases were very numerous in ancient times. The prisoner could challenge peremptorily thirty-five, one less than three full petit juries, and the reason assigned for this number was that the petit jury come instead of the ordeal, and the petit jury of twelve being after the manner of the canonical prerogative, in which the whole *pares*(the prisoner’s equals or peers) were not on the jury, but a select number chosen . by the criminal himself, as was usual among the canonists, and as four juries were as many as generally appeared to make the total *pares of*the county, a middle course was adopted, by giving the defendant the liberty to challenge peremptorily any number under three jiyies. *(Bac. Ab., Juries, E. E.,*9.)

This explains the language we often find, that the prisoner in capital cases is tried by a jury of his *own selection.*This is in effect so, being limited to • four juries less one . juror from whom to make the selection. The selection is made by rejecting all except those he selects or desires for his trial. English statutes and otir statutes have reduced the number of peremptory challenges; and our statute has also extended the right, limiting the number, to other than capital cases. And such is the statute of 1847, under which the trial in this case was had. But to ascertain the character of the right we must consult the common law.

The question in this case is, at what time and under what circumstances does this absolute right of peremptory challenge ceáse ? I should have said, were there no decisions to the .contrary, until the juror proposed by the people had become a juror in the case; and such he certainly is not until he is fully charged with the case, that is, sworn “well and truly to try, and true deliverance make” between the people and the prisoner whom he had *229in charge, etc. Suppose the proposed juror shall fall down in a fit just as he is about to be sworn, would not the court have the right to excuse him, and cause another to be called, though the prisoner should object ? I think no one will doubt this; and yet if he had been sworn and then become sick, or had died, the trial could not proceed.

In England, in capital cases, the clerk addresses the prisoner, in substance, thus (the jury being called and appearing): “ These good men called and appearing are to pass on your life and death, therefore if you will challenge any of them, you are to do- it *before they are sworn.” (Bac. Ab. Jurist, F.)*As to the right of peremptory challenge and the warrant for it, see 4 *Black. Com.,*353; and the-application of the right in *Bow. Title, Juries, E; of Peremptory Ghallenges.*

The counsel for Lindsley has quoted largely from *Gol. John Morris’*case, tried for treason in 1649 (4 *Howell’s State Trials,*1255). So far as it bears upon the precise question under consideration, it may be stated thus: The prisoner excepted against one Brooke. The court: • “ Sir, he is sworn, and you speak too late.” ' Morris: “My lord,I appeal to himself whether he be sworn or no.” Brooke: ‘f Sir, I am not to answer you but the court; my lord, I did not kiss the book.” Court: “ Sir, that is no matter; it is not necessary.” The clerk said: “ Sir, he is recorded sworn; there is no disputing against the record.” The plain inference from this is that the right continues until the juror is sworn. The court conceded the right, and put its refusal to recognize the challenge expressly upon the ground that the juror had been sworn. But it will be said that there was no prior waiver of the right in the case, and that is so. I confess that I cannot very well comprehend this idea of waiver in such a case. The right is absolute until the juror is sworn, and yet it is said that this right may be waived in a manner which will deprive the prisoner of the right to resume it, though the fact *230which bars the right has not yet happened. Upon what principle is he to be estopped ? For it comes to this: he is to be barred or estopped by reason of something he has said or done.

My judgment will not assent to this view. It seems to me a dangerous innovation of a clear and absolute right secured to the prisoner. In the case *State*v. *Patten*(18 *Conn.,*166), the court inquired of counsel whether any reason for a peremptory challenge then existed -that did not exist when they before declined to exercise the right, and the counsel answered in the negative; and the court then decided that it was too-late to challenge peremptorily. As we have seen, the right is absolute. Blackstone says: “Every one-must be sensible what sudden impressions and unwarrantable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner, when put to defend his life, should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceiyed a prejudice, even without being able to assign a reason for such dislike.” (4 *Black. Com.,*353.) Now if the court can, *at any time,*qualify this right by asking for a reason,

I suppose the court will have the right to take into consideration the reason assigned, and pass upon it. If the reason is not satisfactory to the court it will be rejected. Suppose the prisoner should say, I have conceived an unaccountable prejudice against the juror; I dislike him but I can assign no reason for the dislike. The court may say, this is frivolous, this is trifling. Again suppose, after the prisoner had declined to challenge the juror, and he had taken his seat in the box, the prisoner is informed . of some fact which renders the sitting of the juror in his cause absolutely dangerous, and yet the fact is of such a-nature as greatly to prejudice or endanger the prisoner’s case, if made public; ig the prisoner to be' compelled t© *231disclose it to the court? And if so, as I suppose, the court is still to pass upon the reason. In other words, and it comes simply to this, the prisoner may be deprived of the right of peremptory challenge, for a period shorter or longer, before the juror. is sworn. It may be hours, depending upon the practice as to the time of swearing the jury, whether each juror is sworn when he is called and accepted, as is the practice in capital cases, or not . sworn until the box is full.

The counsel for the people has been diligent in collecting the cases in this country. *The State*v. *Patten*(18 *Conn., R.*166) is claimed to be in point.

The court in that case recognize the absolute character of the right, and that it must be fairly awarded to the prisoner, but that the time when that right is to be exercised is a matter of practice in empaneling the jury. The court refer to the practice in England of swearing each juror separately, as he is called, and that the peremptory challenge must, of course, be made before the juror is sworn. The practice in Connecticut is to call the juror, and if found competent and no peremptory challenge is made, he is directed to take his seat; and that course is pursued until a full jury is obtained, and then the oath is administered to them all at onpe. The court held that the effect of the practice in both cases is the same. -In the one case, the prisoner’s opportunity is closed when the juror is sworn; in the other case, when he is directed to take his seat. That by the Connecticut practice the prisoner had an additional advantage; that if anything new had occurred since the juror was directed to take his seat, the prisoner will not be absolutely precluded from taking the benefit of it, as he is in England, after the juror is sworn. I have thus stated the pqsition of the Connecticut court, and perhaps no very serious objections can be made to the *practice*thus established—and it is clearly a matter of practice—under their statute, giving the right to chai*232lenge peremptorily twenty jurors' “ summoned and empanneled.” . The court remark upon this language of the statute, “ summoned and empanneled,” and claim that the court may establish the practice under it, as to the time when the right of challenge is to be exercised.

It will be noticed that the court held the common law to be, as administered in England, that the right continued up to the actual swearing of the juror. That is precisely what is claimed in this case by the prisoner's counsel. • The Connecticut court claims that it gives the common law full effect, and in a manner not prejudicial, to the' prisoner; that the delay to swear the juror cannot prejudice him. Now, how can we be sure of this? When the juror is actually sworn, the rights of the parties are usually fixed, and the prisoner has a right to insist upon his being one of Ms triers. But at any time prior to the actual swearing, I suppose the Connecticut court would exercise the power of excusing the juror on account of sickness, or if he should die the trial would not be arrested. .

If it were a question of practice, and that, too, influenced in some measure by the language of a statute, it may well be considered whether the Connecticut practice should be adopted in this State. Our statute gives the right “ peremptorily to challenge twenty persons drawn as jurors for such trial, and no more.” (2 *R. S.,*734, § 9.) By the act of 1847 (applicable to the present case),the number is “five of the persons drawn as jurors for such trial, and no more.” It is thus seen that the language of our statute and that of the Connecticut statute differ. Whether this difference should affect the question it is not necessary to say; but it is proper to notice that the Connecticut court, in speaking of their statute, say-that the jury form a jury when thus empaneled (that is, sworn, as the counsel claimed they should be to satisfy the statute) is true, but that they are not empaneled until sworn is not true; that a jury are said to be empaneled when the sheriff *233has entered their names into the panel—a little piece of parchment—citing *Co. Litt.,*158 *b.*The court then, in view of the statute giving the right to challenge jurors “ summoned and empaneled,” make it a question of practice as to the time when, during the forming of the jury, the right should be exercised. Our statutes use the language, “ persons drawn as jurors for such trial;” that is, persons whose names are drawn by the clerk from the jury box. There are certainly no words of limitation. The right of peremptory challenge, as to the time when it is to be exercised, is left as it was at common law when our statutes were enacted; and I certainly doubt the power of the court to restrict or abridge this right, because of a change in the manner of empanneling and swearing the jury. I am not in favor of introducing the Connecticut practice into this State. I think the general understanding of the courts and the bar in this State is, that the right of peremptory challenge is secured to the prisoner until the juror is sworn. This rule is certain and easy of application.

In *Hendricks*v. *Commonwealth*(5 *Leigh,*707), the court, on the trial, refused, as in the present case, to permit the prisoner to retract his election of a certain juror, and to challenge him peremptorily. The appellate court were “ unanimously of the opinion that the right of a prisoner to challenge any juror peremptorily is absolute at any time before the juror is sworn, and that no circumstance can bring that right within the discretion of the court so long as it is confined to the number of peremptory challenges allowed bylaw.” This case is in point. *Beauchamp*v. *State*(5 *Blackf.,*308) is to the same effect, and so also is *Manly*v. *State*(7 *Blackf.,*593); and so *Hooker*v. *The State*(4 *Ohio R.,*348); and so also *The People*v. *Kahle*(4 *Cal. R.,*198). The counsel for the people cited, upon the argument, two or three other cases. Some of them I am not able to consult. The decision in the *Oommonwealth*
      *234v. *Angus*(7 *Metc.,*500) evidently depended upon a statute. If was decided at the trial that the right of peremptory challenge must be exercised, if at all, before the jurors are interrogated by the court concerning their bias and opinions. Clearly we have no such law or practice in this State. As I understand, the weight of authority, as evidenced by the decisions in the States, is decidedly in favor of the position that the right of peremptory challenge continues until the juror is sworn.

I think the court erred in not allowing the prisoner to challenge peremptorily the juror Baldwin, and that the judgment must be reversed and there must be a new trial.

There are several other exceptions in the iecord, but the same questions may not arise upon the new trial, and I do not think it necessary to express any opinion upon them.

.Davis, J., concurred.

Judgment reversed and new trial ordered

Daniels, J. (dissenting).

The plaintiff in error was tried before the Court of Oyer and Terminer, held in Orleans county, upon an indictment charging him with the offense of manslaughter. Various exceptions were taken upon the trial, and after the conviction of the plaintiff in error, a bill of exceptions was made and a writ of error issued, bringing them before this court for its consideration. Several of these exceptions arose upon the empanneling of the jury. The first was taken to the ruling of the court that Nehemiah Gates was a competent juror. Upon being sworn and interrogated, he answered as.follows: “I don’t know as I have formed an opinion. I have formed an opinion if what I heard was true. I believe that what I heard was true.” Upon being cross-examined, he said: “I formed an opinion if what I heard was true. I did not know whether it was true or not.” The opinion which this juror had was merely hypothetical, depending on whether the statements he had heard were true or not *235which he did not know. Another exception of the same general nature was taken to the ruling concerning the competency of Asa Baldwin. He testified as follows: “I have heard of this cause. I have not thought much about this case since I heard of it. I have read an account of it in the papers. If true, I did form an opinion. I read the account, believed it, and then formed an opinion.” Upon being asked whether he, at the time of the examination, had any fixed opinion upon his mind as to the guilt or innocence of the prisoner, he answered: “I have not.” The state of this juror’s mind was very much like that of Mr. Gates. Whether he had any opinion' depended upon the truth of the statements he had read. But he was able to say decidedly that he had no fixed opinion on the subject of the prisoner’s guilt or innocence. If he had no fixed opinion, it is difficult to understand how he could have any opinion whatever upon the subject, fin-an opinion is a fixed conclusion in the mind, a conviction of a more or less decided character concerning the subject it relates to. If it is not in any way fixed in the mind, it must be a mere conjecture or impression which would leave the mind impartial upon the subject to be investigated. It has accordingly been held that to constitute a ground of principal challenge for cause to a person called as a juror, for an opinion formed, that it must be a fixed or settled opinion. “And nothing short of such an opinion will sustain a challenge to a juror for principal cause.” *(People*v. *Honeyman,*3 *Denio,*121, 123.)

The decision of the Court of Appeals in *Qancemi’s Oase*is no way in conflict with this conclusion. The juror in that case stated that he had formed an opinion, and expressed it, and on cross-examination said that he had no fixed opinion—none which could not be removed by the evidence. It is plain that the juror in this case entertained a fixed opinion. The state of his mind was such that it required evidence to render it impartial. While *236his opinion would yield to evidence, without it the opinion would remain. He could not have tried the prisoner impartially until that opinion should be removed. He would enter upon the case, if his opinion was against the prisoner, with a conclusion against him, which the prisoner would have to remove before the juror would be prepared to pronounce him innocent. This was directly opposed to the theory of trial by jury, which requires that the jurors shall be entirely impartial upon the case they are required to hear and determine. This juror was held to be incompetent because “ his mind was preoccupied with an opinion upon the issues to be tried, which it would require evidence to remove; and that, upon principle, and by all the cases, incapacitated him for a juror. (16 *N. Y.,*502, 505.)

The juror in the case of the *People*v. *Mather*(4 *Wend.,*231), testified that he had no fixed opinion other than such impressions as were formed upon printed statements in papers and reports in conversations. But he did have a fixed opinion derived from those sources. That is assumed in his answer; and on that account he was determined to be incompetent. In delivering the opinion of the court in that case, Justice Marct said: “ There is, however, a distinction between positive and hypothetical opinions. It was recognized in the case of *Durell*v. *Mosher*(8 *John.,*445). The court in that case say that the juror had given no decided opinion on the merits; his declaration was hypothetical.” *(Idem,*243.)

In the case of *Freeman*v. *The People*(4 *Denio,*34), it was held that contingent or hypothetical opinions fall short of what is required to maintain a challenge for principal cause. And the same conclusion was declared in *People*v. *Stout*(4 *Parker,*71, 109). In that case it was held that the opinion to disqualify a juror must be absolute, unconditional, definite and settled, in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be for the time being settled *237and at rest upon the question of the prisoner’s guilt. Under these authorities there was certainly no impropriety in the ruling that these two jurors were competent to serve as such in this case.

After six jurors had been selected and accepted from the regular panel in attendance npon the court, and twenty-four of the seventy-five drawn as talismen from the box of the town had appeared, the court ordered their names to be placed in the box, and the drawing of the jury to proceed from them. To this the prisoner’s counsel objected, because the entire seventy-five had not then been summoned and returned. The court overruled the objection, and the prisoner’s counsel excepted. There is nothing in the statute under which these jurors were drawn requiring the court to delay the organization of the jury until all those that are drawn shall be summoned and returned *(4th R.*S., *5th Ed.,*648-9). And it is not pretended that the prisoner was in any manner prejudiced in his rights by the omission to do so. And in that case, the rule appears to be settled that any informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not or could not have sustained any injury from it. *(The People*v. *Ransom,*7 *Wend.,*416, 424.) The object of drawing the additional jurors was to obtain a sufficient number to form a complete jury; and if that could be done without delaying the trial until all that were to be summoned had appeared, no injury whatever could result to the prisoner by taking that course.

When the juror, Asa Baldwin, was held to be competent to serve, the court asked the prisoner’s counsel if they challenged the said juror peremptorily; to which the counsel replied no. The prosecution declining to challenge the juror peremptorily, he was then directed to and *238did take Ms seat with the" other eleven jurors, who had previously been selected as jurors in the cause and were then in the box. Afterwards, and before the juror was sworn, or commenced to be sworn, and while the other jurors were being sworn, the prisoner’s counsel insisted upon peremptorily challenging the said juror, his peremptory challenges being then unexhausted. But the court decided not to allow the challenge to be made, on the ground that the counsel for the prisoner had waived his right by refusing to do so when asked by the court if they would so challenge Mm before he was directed to take his seat in the jury box. The prisoner’s counsel excepted to this ruling. It is now insisted, on the part of the prisoner, that the refusal to challenge the juror peremptorily when an opportunity to do so was expressly given him before the juror took his seat in the jury box, was no waiver of his right to do so afterwards, before he was sworn. The refusal to challenge the juror peremptorily was decided and explicit—not that he would not be challenged then, but that he would not be challenged peremptorily by the prisoner’s counsel. And no reason was suggested at the trial on the part of the prisoner, when the juror ,was about being sworn, rendering it proper that he should then be permitted to avail himself of the right he had so distinctly renounced before. In the absence of any different understanding at the trial, the right to make peremptory challenges will continue until the jurors are sworn. That is essential to the proper and perfect maintenance of the right itself. But when a different course is adopted by which the exercise of the right is to be made at a particular time, in no manner prejudicial to any other privilege secured to the prisoner, his right to make peremptory challenges is in no way impaired. If he desires to peremptorily challenge a particular juroi an ample opportunity for doing so is secured to him; and that, too, after his challenges for cause, or to the favor, *239may have been made, which is all that he reasonably or justly has any right to demand. His peremptory challenges are as completely and effectually preserved and secured in that manner as they would be by allowing them to be made at any time before the jurors are sworn. In the case of *The People*v. *Damon*(13 *Wend.,*351), Savage, Chief J., delivering the opinion of the court, stated that “ the regular practice is to challenge jurors as they come to the book to be sworn; but I apprehend this is matter of practice, and may be departed from in the discretion of the court.” In this case no objection was raised to that course, when the defendant was required to make the challenge if he proposed to do so; but, on the other hand, both himself and his counsel apparently acquiesced in the propriety of the practice adopted in this case.

There is nothing contained in the statute, conferring the right upon the prisoner to make peremptory challenges, requiring that the time for making them should be prolonged to the actual swearing of the juror. It provides that every person put on trial for any offense punishable with death, or imprisonment in a State prison ten years or any longer time, shall be entitled to peremptorily challenge twenty of the persons drawn as jurors for his trial; and every person put on trial for any offense not punishable with death, or imprisonment in State prison for ten years or a longer time, shall he entitled peremptorily -to challenge five of the persons drawn as jurors for the trial. (3 *R. S., 5th ed.,*1027, §§ 9, 10.) This provides no particular period at or during which the challenges may be made, except that it must be after the person challenged has been drawn as a juror. And the privilege or right thus secured to the prisoner.was as completely presented to and enjoyed by him as it could have been by continuing it until the juror wag sworn. The opportunity of challenging the juror peremptorily was clearly and distinctly *240given to him, and he as clearly and distinctly declined to avail himself of it.

Under the statute, this right is secured to the accused. He is not obliged to exercise it, or to avail himself of it Whether he will do so or not is exclusively within his own election. It is in no manner essential to the validity of the trial that he should make use df it; and if he omits to do so he has no right to complain of the omission. It .is obviously and necessarily, therefore, a right or privilege which he may waive, and it is solely for him to decide whether he will waive or assert it. In this respect he. is subject to the dictation or control of no person whatsoever. When the opportunity was extended to him for exercising this power, he not only decided not to make use of it, but announced that determination as clearly, and plainly as words could be made to express it.

This right of peremptory challenge is of an entirely different nature from those reserved to the criminal which it has been held he could not waive. Among these is the positive requirement that persons accused of crimes shall be tried by jury, and that the jury shall consist of the first twelve jurors who shall appear and be approved as indifferent, both of which were secured to the prisoner in this case. Under the great charter of England, a peer was required to be tried by peers of the realm. In these cases the charter in the one case and the constitution and statute relating to the others, are imperative, and no legal valid trial could be had without conforming to their requirements. *(Cancemi*v. *The People,*18 *N. Y.,*128.) The party charged with the offense could legally be tried in no other manner than that specially declared and provided, and consequently consent on his part to a different mode of trial would be altogether nugatory. The end would be the same as though he persistently objected to the unauthorized proceeding. But there is no statute imperatively requiring that the prisoner shall perempto*241rily challenge one or more of the persons drawn as jurors to try him. The privilege is conferred upon him to use it or not, as he may deem proper. And his election upon that subject is not only conclusive upon him, but it is likewise so upon every other person. And being so, he may use or surrender it as to him may at the time seem proper. A party may always waive a benefit secured to him by law, whether constitutional or statutory, unless the observance of it is imperatively required. He may waive a constitutional provision, or an enactment of the Legislature intended for his benefit, subject to the restriction just mentioned. *(Lee*v. Tillotson, 24 *Wend.,*337; *People*v. Murray, 5 *Hill,*468; *Sedgwick on Const, and Stat. Law,*111, 421; *Buel*v. *Trustees of Lockport,*3 *Com.,*197, 200.) He may also waive his right to an examination when arrested upon a criminal charge. *(Champlain*v. *The People,*2 *Comst.,*82, 84.) And when arraigned upon an indictment he may even waive his right to a trial by pleading guilty, and that too without reference to the character or consequences of the offense he maybe charged with. On this general subject Cowen, Justice, in delivering. the opinion of the court in *The People*v. *Rathbun*(21 *Wend.,*542), said: “Quilibet potest renunciare juri pro se introducto, is a maxim of universal application. The prisoner may even waive his right to a trial at the hands of a jury on the merits by pleading guilty. Having the power, no one will pretend that he cannot consent to anything less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” (See also *Broom’s Legal Maxims,*444.) And having the power, no more unequivocal indication could be given of the intention to renounce the privilege conferred upon him than that which the evidence in this case presented. If the party arraigned upon an indictment should declare that he did not demand a trial, or, which is the same thing, pleaded guilty, he would have *242no right afterwards to' demand a trial or plead not guilty. His right would be gone with the announcement of his determination, and whatever change might follow a change in the prisoner’s purposes, would depend upon the discretion of the court. So it was in this case. When the prisoner’s counsel declared that they would not peremptorily challenge the juror, they disclosed their purpose to be to waive or surrender that privilege, and practically consent that the juror should take his seat. And no case can be found in the books, unless it may be that of *Hendricks*v. *Commonwealth*(5 Leigh, 707), in which a different conclusion is maintained. In the case of *Beauchamp*v. *The State*(6 *Blackford,*308), four jurors were called; three yere accepted, and one was challenged by the prisoner, and another was called and accepted by him, and thereupon one of the first three was peremptorily challenged by the State, and the challenge was allowed, which was held not to be error. The cases of *Manly*v. *The State*(7 *Blackford,*593), and *Wyatt*v. *Noble*(8 *Id.,*507), were decided on that authority. It does not appear what the question was, or how it was presented in either of the last two cases. The simple point decided is all that the reports contain, and that is that the right of the party to challenge a juror peremptorily continues until the jurors are sworn, which of course states the general rule of law on the subject, without the important element existing in this case showing its abridgment. In the case of *Jackson*v. *Piford*(8 *Blackford,*194), the challenge was allowed after the party declared himself satisfied with the jury. There was no impropriety in that because its allowance rested in the discretion of the court, and its exercise for that reason could not be alleged as a ground of error. In the present case, if the same discretion had been used in the same way, the prosecution could not have complained of it. Being discretionary, the manner in which the power was used, whether to permit or exclude the challenge, *243would not be subject to the review of. an appellate tribunal. In the case of *Jones*v. *Van Zandt*(2 *McLean’s Rep.,*612), a peremptory challenge was allowed under very much the same circumstances, not as a matter of right, but because the court thought it not unreasonable to allow the challenge to be made. In the case of *Hooker*v. *The State*(4 *Ohio,*348), the court required the peremptory challenges to be exhausted before challenges were made for cause. This was in conformity with the practice now well settled by the Supreme Court of Massachusetts. *(Com.*v. *Rogers,*7 *Met.,*500; *Com.*v. *Webster, 1 Cush.,*295.) But the Supreme Court in Ohio refused to sanction that practice, and that is all that was really presented for decision or decided in that case. The question now before this court was in no way presented by it. The case of *Schumaker*v. *State*(5 *Wisconsin,*324), has still less bearing upon it. The court at the trial held that the prisoner must challenge four jurors peremptorily at one time, or be considered as waiving four such challenges. And this was held to be error. In the case of *The State*v. *Cameron*(2 *Chandler’s Rep.,*172), the same court distinctly decided where the jurors had been accepted, but not sworn, that it was then too late to make a peremptory challenge; and that, too, when there had been no express refusal to rnakfe the challenge at any time. In the case of *Patton*v. *Ash*(2 *Sergt. & Rawle,*123), the party expressly declined to make a peremptory challenge when his turn to do so was presented, and it was held that he had waived it, even though the jurors had not been sworn. Ttlgh-MiUsr, C. J., said: “ If the plaintiff waived the second challenge when it came to his turn to make it, he would not be permitted to resume it again. It would give him an unfair advantage.” In the case of *The State*v. *Potter*(18 *Conn.,*166), this precise question was presented, and the court held that the party could not make a peremptory challenge after he had declined to do so when the oppor*244tunity was directly presented to him for that purpose at the trial. These are all the authorities which have been found bearing upon the consideration of the present question, and they certainly appear to preponderate very decidedly in favor of the disposition made of it at the trial.' And in that respect they coincide with the good sense and reason of the law upon this subject, and at the same time secure to the accused the substantial enjoyment of the privilege designed to be conferred upon him. The time when the privilege may be exercised, if it be left free and unembarrassed, cannot be important. The paramount consideration of the law is that it shall be available to the accused as a final means of setting aside the juror, after exercising or waiving his challenges of a different description. Wharton says that “ it is clear that the right ceases when the panel .is complete and accepted.” Though it would otherwise continue until the jurors are sworn. *(Wharton’s Crim. Law,*§§ 2,972, 3,026.)

The juror, John Eawle, upon his examination stated that he had formed an opinion, and he was excused on that account. The defendant’s counsel then offered to prove that the opinion formed was adverse to the prisoner, which was ruled out and the counsel excepted. That the proof offered would not render the juror competent was expressly decided by this court in the case of *The People*v. *Floyd,*in which Justice Davis delivered the opinion. Nothing can be added to what was said by him on that occasion on this point.

Upon the trial of the cause the witness, N. B. Sherwood,, was asked the general question whether, in his opinion, the defendant had a sound mind at the time of the occurrence on which the indictment was predicated. This was objected to as incompetent by the witness, and the objection was sustained. This witness was an acquaintance of the prisoner, and had previously stated the impressions produced on his mind by his conduct and demeanor. He *245was not shown to be an expert in any sense of that term; ancl even if the question was right in point of form, it is well settled that such a witness is not competent to give a general opinion upon the question of sanity. While he may state the convictions created in his mind by the acts and conversations of the person whose mental condition may be in question, he cannot be permitted to answer the general question, whether his mind was sound or unsound. *(Dewitt*v. Bailey, 5 *Seld.,*371; 17 *N. Y,*340, 347-8; *Barb. Crim.*Law, 399; *The People*v. Lake, 2 *Kernan,*358; 1 *Greenleaf on Evidence,*§ 440; *The People*v. *Eastwood,*4 *Kernan,*562.) Within the same authorities, there was no impropriety in permitting the witness, Henry Fenis, to answer whether the defendant talked intelligently. What was asked for was the impression or conviction produced on his mind by what he had observed, and not a general opinion upon an abstract question. The witness, Harrington, gave the same general description of evidence as the result of his observations of the defendant. It was only when it was proposed to go beyond that, and inquire generally as to the opinion of the witness concerning the prisoner’s mental condition, that tüe question was disallowed as improper.

The prisoner’s counsel asked the court to instruct the jury that there was no evidence from which they could find that the injuries were inflicted by him upon his child in the heat of passion. The court declined to charge in that manner, and the prisoner excepted. He also excepted to the charge that the jury were at liberty to disbelieve the- statement of the prisoner that he was not angry or in a passion at the time he punished the child; and determine from the appearance of the child, and the length of time the prisoner was punishing it, and such other circumstances as they found proved in the case, whether the injuries were inflicted in the heat of passion. The charge as given in this respect was within the very well settled *246rule of evidence relating to confessions proved upon the the trial, and is fully sanctioned by the decision of this court pronounced by Judge Bronson, in the case of *Kelsey*v. *Bush*(2 *Hill,*440). The rule as he stated it to be is that, if that part of the confession which discharges the party is in itself highly improbable, or if there be evidence alliunde, though but slight, tending to discredit it, the jury may believe one part of the confession and reject the other. Greenleaf says: “ It is-not to be supposed that all the parts of a confession are entitled to equal credit.

■ The jury may believe that part which charges a prisoner and reject that which is in his favor, if they see sufficient grounds for so doing.” (1 *Greenleaf on Evid.,*§ 218.) The evidence was such that the jury were at liberty to conclude from it that the prisoner had beaten and talked to the child alternately for two hours and a half, the beating being with a piece of shingle near two inches in width, with so much violence that at the end of that time it expired. The condition of the body indicated the beating it had received to be the cause of its death; and if they believed that to be true, no violence would be done to the circumstances if they were made to support the conclusion that the injuries inflicted upon the body of the child were inflicted in the heat of passion. The question might well suggest itself whether a father could thus beat his child of three years and a half old without being in the heat of passion, and that question was solely one for the jury to answer. The evidence was certainly sufficient to justify them in the answer they gave to it.

The part of the charge relating to manslaughter in the third degree cannot be of the least importance, since the prisoner was not convicted under it, and it was in no manner connected with the offense of which he was found guilty.

The prisoner’s counsel requested the court to charge the jury that if the prisoner commenced the punishment pro*247perly and in a lawful manner, and had no reason to suppose, and did not suppose, he was endangering the life of the child, that he was entitled to an acquittal. The court declined to charge in that manner, and the prisoner’s counsel excepted. The court charged, in this connection, that even though the prisoner did not have reason to suppose that he endangered the life of the child, yet if the punishment was immoderate or excessive, and such excess was cruel and unusual, and produced the death of the child, and was inflicted in the heat of passion, the defendant would be guilty of manslaughter in the second degree. To this the prisoner’s counsel also excepted. Whether the punishment was commenced properly or in a lawful manner or not, was entirely immaterial under the statute. It is of no consequence whatever how it may have been commenced, or what the prisoner’s supposition might have been in relation to it, if the punishment was afterwards applied in a cruel or unusual manner, and in the heat of passion, and that produced the death of the child, the offense was committed within the very terms of the statute. The statute provides that *“the*killing of a human being, without a design to effect death, in a heat of passion, but in a cruel or unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.” (3 *R. S. 5th ed.,*940, § 10.) The act could have been excusable homicide only in case the death of the child had been produced by accident and misfortune in its lawful correction *(Id.,*939, § 4), which could not be true where the punishment was excessive or immoderate. In order to constitute the offense of manslaughter in the second degree, in a case like the one under consideration, all that the statute requires is that the punishment should be of a cruel and unusual character, which it could not be unless it was immoderate'or excessive, that it should be applied in the heat of passion, and result in the death of *248the person receiving it. lío other elements whatever are included in the statutory definition of the crime, and it would therefore have been error for the court to have charged as requested. The. conviction of the defendant should be affirmed.

Judgment reversed and new trial ordered.