Jury Challenge. was called upon to specify his ground of challenge under the foregoing subdivisions. The principal challenge was against special competency as juror — either proceeding from alienage, or non-residence, or nonproperty qualification, or as being under age, or a convict. The favor challenge implied that the juror called had some mental im pression or bias in some degree either per sonal or derivative towards the accused, or respecting the character of the crime imputed or on the guilt or innocence about to be tried. The oldest known authority recited that the mind of every juror called should be as blank upon the controversy as if it was a sheet of pure paper, and should not con tain even suspicions or breath of prejudice or sympathy or impression, however slight, or any mental inscription of an opinion, whether silently held or expressed. When the first juror was called and challenged he became at once a witness as to his compe tency. Then the presiding judge selected from among the bystanders — members of the bar, as first choice, who had no interest in the controversy — to act as two " triers "; who each were sworn to well and truly try the competency of the challenged jurors. These triers took the first two seats in the empty jury box and there sat as interlocutory jurors. The challenging counsel then ques tioned the juror witness in respect to the challenge against them, and the other coun sel cross-examined; and then the counsel on each side addressed the triers on the answers; and the judge, if he thought it necessary to charge the triers as to their duties and com ment upon the answers or arguments, did so very briefly. Next the triers consulted and pronounced " competent or incompe tent." Exception laid to any erroneous ob servation of the judge, but the decision of the triers was also open to exception while for the time remaining final. When a juror was found competent he succeeded the first trier and became trier himself; and when a second juror was found competent he took the place
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of trier number two. Thereafter, until the panel of twelve was completed those two jurors sworn in the case remained as triers. Throughout the foregoing procedure either counsel could exhaust the peremptory chal lenges permitted by statute even after triers had found competency. The questions put to the juror witness must have been relevant to the subject of challenge and were not allowed to become mere fishing queries. But it is under the existing system of trying chal lenges by the New York judge in place of triers that fishing questions arc allowed; and do themselves challenge the ingenuity of counsel. During the challenges in the Tobacco Trust case it was the intention of the prose cuting counsel to endeavor to make a juror called and examined, admit or deny that he had any sympathy with or bias toward the conspirators indicted; whether in a personal, neighborly or business view; while it was the trend of Choate and his legal comrades to keep off the panel anyone who held even general prejudices against trusts or commer cial agreements to raise or depress prices, or create business monopolies; and of course watching for any personal prejudices against their clients. That Choate and his legal comrades angled after jurors who favorably regarded trusts or who were patrons of the tobacco that was manufactured or sold by their clients is a condition to which applies the colloquial French phrase cela va sans dire. About a year ago an article appeared in The Green Bag entitled " Trial by News paper," and which criticised that tendency of some editors and reporters to try in their columns the guilt or innocence of accused persons, practically give verdicts thereupon, and so in advance of a trial necessarily prejudice newspaper readers who were likely to be summoned as jurors. It so happened that some dailies in New York City — and one of these very especially — had, before the trial just referred to was called, very severely
