and then of the defendant, "do you accept this juror, or do you challenge him?" If challenged for cause, the party should declare for what cause or causes he so challenges him. Then the court should enquire "how will you have this challenge tried, by the court or by triers?" If by the court, the cause, if disputed, is to be tried by the court upon the oath of the person challenged, and upon no other evidence. If the party challenging shall elect to have the cause of challenge in dispute determined by triers, it is to be tried on other evidence to the exclusion of the oath of the person challenged. The fairest mode of appointing triers, would be for the court to select indifferently two of the jurors accepted by both parties, upon the panel, and until so many have been accepted, two different persons are to be appointed from among the by-standers, or from the panel returned on the venire, at the pleasure of the court.
By the statute, two distinctions existing at the common law between challenges to the polls for principal cause and for favor, have been abolished in form, though not in substance—that though the challenge, when stated, appear to be for principal cause, it is not necessarily determined by the court, but if the party challenging shall so elect, it may be determined by triers; and that as the statute makes provision for bills of exception in criminal cases, there seems to be no good reason for the distinction that challenges to the polls for principal cause, when stated, become part of the record, and ought so to appear, but the party may make them so by bill of exceptions, when necessary, to explain the ground of his objection, whether for the improper admission or rejection of testimony, or any erroneous decision or instruction to the triers as to matter of law, according as the facts may be admitted or proved. As in civil cases, questions of fact are to be tried by the court, instead of a jury, where neither party demands one, and in criminal cases, the right to a jury may be waived, so in regard to these collateral issues, unless it be made to appear upon the record that the party challenging demanded triers, the presumption will be that he elected to have the cause
