Motion made by the Defense that the Court order the prosecution to tender the Defense four jurors. Discussion regarding procedure for approving jurors. Defense motion refused by the Court and an exception by the Defendants was entered into the record.

Mr. BLACK. Here is a question which we desire to present to the court this morning without argument. It is, to a, certain extent, the same question that was raised the other day. After four had been tendered by the State, and three of the Jurors were challenged our position was that the State would have to tender us four. Last night, the court will remember, they tendered us four, all of which, in our judgment, were subject to challenge for cause, and challenge was made by the defendants afterwards were all sustained by the court as to each one of them. Now, we ask that the court order the prosecution to tender us four jurors, and upon the refusal of your Honor we desire that an exception be entered.

MR. GRINNELL: I wish to make a suggestion. Five jurors were called into the jury box by the gentlemen themselves yesterday before this point was made. In other words, they examined five and excused them. It is too late to raise that question if it can be raised at all. I wish to make this further suggestion, that there is no law compelling me to ask the jurors any questions. I could accept any 12 or 4, or any number that I please that are called into the box, with no questions if I deemed deemed desirable. I asked the four that I did turn over to them such questions as I thought made them competent to serve. They have passed upon those four, and called into the box one other, making five, and those five they have excused. The motion that he makes is inopportune.

Mr BLACK: The six men were in the box when the four were turned over to us.

THE COURT. I don't think that that circumstance makes any difference.

If we had no statute upon the subject and were governed only by the common law in the selection of jurors, the method of common law is that a juror is tendered one by one as he comes up to be sworn to try the cause, and then the defendant either challenges him peremptorily or challenges him for cause, and when such a challenge is made for cause, then the juror is sworn to answer questions. But the state, or the government does not challenge jurors in advance, or pass upon them in advance of the defendant; it waits until jurors satisfactory to the defendant, for the full panel of 12, and then exercises its judgment about what jurors it will accept. But our statute has provided that in impanelling jurors they shall be accepted in fours.

Now, by itself, that phraseology would seem to mean that they should alternately pass upon them; that when the plaintiff has passed upon and accepted four and tendered them to the defendant, then the defendant or the defense shall accept four before the plaintiff is required to do anything more; and I think that is the right construction. Neither party is bound to challenge any juror whatever may be the condition of the juror's mind. Either party is at liberty to accept any juror that is presented, and so no inquiry as to what kind of juror either party tenders to the other cuts any figure in my estimation upon this question of tendering four backwards and forwards.

Mr FOSTER: Our motion is overruled?

THE COURT. Yes.

THE COURT. The State having tendered four, the defense must now tender four to the State before the State is required to do anything.