Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-04-02

file an affidavit averring he is an alien,
and a want of knowledge on their part,
when selected, that he had not been
n8turalized. How do the defendants seek
to show his ~alienage2 They produce in
court what purpOrts to be q copy of a
record of his naturalization from a court
In the city OfNew York, effectively Ger
titled. The
JUROR HAD BEEN EXAMINED
after the verdict and had stated his origi
nal papers had been lost. Now, the ques-
ton is, shall this imperfectly authenti-
Gated transcript OF citizenship prevail
over the two legal presumptions In favor
OF naturalization above referred to? The
question is, was he a citizsnt, and not
whether h purpOrted copy of natural
ization was improperly authenticated.
They seek to prove the jurors slienage
By a transcript of naturalization imper-
fectly certified, attacking simply the GER
t~ificste, and not the record itself. AdOZ3n
defective certificates would not disprOVe
the fact of citizenship. 1t is true the tes-
timony showed the juror had been an
alien, but the papeT referred to, instead of
proving hat he continued to be such,
tended rather to
CONFIRM THE @ PRESCRIPTIONS
that the sheriff had summoned a citizen,
and that on swearing to his citizenship
j LuG N4LOL AhA EhOAA - NAA0 EAAAA 44A AA4
not at sll exclude the fact of naturaliZa-
ton. The effectively certified record i'm
plies the existence of a genuine record.
II it exists, he is a citiZsn. For the fact
of citizenship rests upon the record, and
not upon the immediate possession Of ma
t~urslizstion papers. If such was the case,
citizenship would be held by q precsrious
tenure, for the loss of papers would in
VOlve the loss Of citizenship. Hundreds
of our citizens might lose their papers and
/ claim exemption ffOm jury service, and
perhaps other duties imposed upon citi-
/ Zsns. But is the objection now available
if the Juror was an alien2 1t is true that
the State should present TO the defendant
UNEXCEPTIONABLE URORs
This must mean if objections are taken
on examination il is then incumbent on
the State to present persons who are free
from challenge, but, il not challenged, the
principle is well settled there is q waiver
of these objections. The doctrine is IA
miliar that a party may be tried by in
comperent jurors if be desires it. If he
does not object at the time the the jury is
being impanneled he cannot generally do
so afterwsrd. Bishop Cr., Proc. Vol. l,
Secs. 8O7, 1873 That the juror was al
alien was a cause of challenge st COM
mon law. But for one to avail himself Of
this objection it must be by challenge,
and not at a later stage in the proceedings.
1t has been held hat a
IL Il WILL NOT BE GRANTED
for this cause even though the party did
not know the juror was an alien until af-
ter the verdict bad been rendered. Same
authority, Sec. 784.) Now, if the objection
should 20 to any matter that impeaches
the fairness or impartiality of the verdict,
q new trial ought to be granted. But sim
ply because of a disqualification, founded
on purely technichsl grounds, affecting In
no way the Justice of the verdict, and for
which the juror might then, as we'll as
any subsequent time, have been challeng-
ed, it does not seem right and proper that
this objection should avail after verdict,
when It could just as well have been
taken
BEFORE H URY WAS WORK.
This seems to be the view taken by our
Supreme Court. II the cause of challenge
existed, though not known to the defend
ant, he cannot avail himself of the want
of knowledge or motion for new trial. q
Yerg, 206,) asks the Court in that case:
" What evidence have we of this want OF
knowledge; the affidavit of a convicted
felon-proof always to be had when
deemed necessary" To permit a want
of knowledge of the ground of challenge
to avail would be a dangerous practice,
when that ignorance must be shown by
the oath of the convicted felon. This is
THE REASON OF TIE RULE,
and it is a good one.
In BOBBY VS.. State "A Yerg. 1l3(, of
the jurors was Incompetent, but the Court
says, TO render the ground available for
the purpose of setting the verdict aside, |
1t ought to appear that the defendant
could not avail himself of it as a matter of
challenge, for if he could, the law will not
permit him to lie by, take the chance of a
verdict iD his favor, and, If adverse, bring
forward his exception, waived at the
proper time Of making it, and claim a
further benefit. The same doctrine is an
nOunced in 8 Yerg. sos,
R~E-AFFIRMING THE DECISION
in Yerg. 2l9, that want of knowledge is
no exception to the general rule. 10
Hump. AT, an affidavit was filed stating
that n Of the jury was not q freGholder,
and That this fact at the time of trial was
unknown to affidavit. New trial was
asked on this ground. The Court says:
' This has been so repeatedly held in This
State to be no aus for a new trial, and
the reasoning therefor has been so repeat
gone into in various cases heretofore
examined and reported that we deem il
unnecessary to add a word further
The case of Magness VS.. Stew
and wife, in 2 Csld. 800, announces
PRECISELY THE SAME DOCTRINE.
In that case an affidavit was msde that
Jns of the jurors was interested in the re-
suit of the suit. There Was good Of
challenge like alienage or the wan Of a
qualification, n like these
,auses, objection could have been made at
he time the Juror was elected. But, this
lot being done at the time, there was a
and no new trial will be granted
because of that fact, referring to and ap-
the decision in s Yerg., sos, already {
fFoH Tho ranawoI doctrine i1 NH At mvar
ACAUsE OF CHALLENGE,
not noticed, will not avail on motion for
new trial. The views expressed by our /
Court upon the point we have
ust been discussing, accord with the Eng
ish authorities, y Hawk, P. B. 43, the King {
=. YelvertOu, Rep. "a, l Chitty Or. Law, '
40 sh. seq J So, upOn a C~onsiderate re- q
lew of the authorities touching this
round Of objection 10 the verdict, and
Examining it rs we conceive, in the light
( principle and reason, we are constrained t
D the conclusion that it is wholly untena- o
le. The very name Of the juror, CASTILLO, 6
hOuld have put an American lawyer upon C
as to the nativity and citizenship c
the juror, and these, with the means &
at command, we're as easily ascer- 8
when elected as after verdict. "
5. That the .
CHARGE OF THE COURT Y
l reference to the alibi set up by one Of Ia
le defendants is stated too strongly 81
ysinst the defendant. The following Is iU
le clause to which exception is specially u
The proof tending to show an 81
ibi must outweigh all the proof in the it
.se tending to show the defendant as al
-esent at the commission of the Offense, st
fore it can become q successful defenss.U ca
the law improperly stated and did it u
islesd the jury2 Counsel argued this
to the charge as If the court had
sted that it was incumbent on the de- q
Ddants to introduce proof to establish ~
is defense and that the eUideRee so intro "
seed 6y him must outweigh all the proof Us
nding TO show him present when the 81
.ense was committed. Such is u
o LEGITIMATE CONSTRUCTION
the charge, for it expressly SAWS. the TE
oof tending to show an abb must out
Ugh the proof tending to show the de-
ldant present at The hanging. Al
The pTDOf in the cause, it matters not by -
lOm introduced, must establish the abb ~
the manner indicated. It will be OBJ n,
we'd that the charge does not state that h.,
, proof as to the abb must outweigh an ~
, proofs the cause tending to show the ",
guilty of the crime. It is true that ~
guilt necessarily iAUOJVes the idea that y.
was present, but it implies much more 81
order ~
TO CONVICT HIM OF GUILT N
IN his presence, for he may have been tie
locently present, possibly seeking to m.
the preparation of the crime. bel
,ch more proof, then, is necessary to
w him guilty than simply to show
q present at the time and Mace Of tbe bu.
iging. To recur then again to the 6d
rye, it in effect says the proof tending rim
ihOW the abb mus outweigh at least 1t
the proof tending TO show the simple, tus
gle fact Of his presence where and II
en- the crime was committed, The fac