Opinion, per WANAMAKER, J.

"Eighth. That he is an habitual drunkard; "Ninth. Like challenges shall be allowed in criminal prosecutions as are allowed in civil cases." The last provision reads into the criminal statute the civil statutes pertaining to challenges, which in turn become important. They are as follows:

"Sec. 11437. The following shall be good causes for challenge to any person called as a juror for the trial of any cause:

"1. That he has been convicted of a crime which by law renders him disqualified to serve on a jury; "2. That he has an interest in the cause;

"3. That he has an action pending between him and either party;

"4. That he formerly was juror in the same

cause;

"5. That he is the employer, employe, counsellor, agent, steward, or attorney of either party;

"6. That he is subpœnæd in good faith as a witness in the cause;

"7. That he is akin by consanguinity or affinity within the fourth degree, to either party, or to his attorney;

"8. That he is a party to another action then pending in any court, in which an attorney in the cause then on trial is an attorney, either for or against him;

"9. That he, not being a regular juror of the term, has served once already as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months; and in any of such cases each shall be considered as a

Opinion, per WANAMAKER, J.

principal challenge, and its validity tried by the court."

"Sec. 11438. Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror's being entirely unbiased."

It is significant that upon amendment of the homicide statute in 1898 there was no change made in the provisions as to the grounds for challenge of jurors.

The right of trial by jury, particularly in criminal cases, is generally conceded to be a part of the English system of jurisprudence. Its earliest origin is unknown, but its substantial recognition, even by royalty, is recorded in Magna Charta, where the right was guaranteed in the famous document from King John of England in 1215. This charter has been generally recognized as the bulwark of English liberties.

The special provision of the charter applying to the right of trial by jury follows:

"No freeman shall be hurt in either his person or property, unless by lawful judgment of his peers or equals, or by the laws of the land."

Originally the jurors were selected from the vicinage or neighborhood, because of the superior knowledge of such a jury concerning the defendant personally and the facts touching his guilt or in

Opinion, per WANAMAKER, J.

nocence; in short, the knowledge of the neighbor was presumed to qualify him to try the question of the guilt or innocence of the accused. Intelligence was at a premium. Years of practice have thrown the pendulum to the other end of the arc and in too many jurisdictions the test of jurymen to-day is not intelligence but ignorance. The primary question too often is, how can we find twelve men who are wholly ignorant of the alleged transaction and of the defendant?

The oath of the juror is to "well and truly try and true deliverance make between the state of Ohio and the prisoner at the bar." All of above grounds, severally and collectively, are primarily designed to secure for the state, no less than the prisoner at the bar, a fair and impartial jury.

What is the jury to try? Manifestly the issues raised by the indictment; that is, the guilt of the prisoner as therein charged. The entire voir dire examination should be directed exclusively to the question whether from any cause the juror has a bias of mind in favor of or against either party that would interfere with his impartial and full consideration between them as to the guilt of the accused as charged.

Now, when that guilt is determined, and in this case it was found by the jury to be murder in the first degree, it then becomes the duty of the jury to determine the penalty. If they recommend mercy, the court is obliged by the statute to impose life imprisonment. If they fail to recommend mercy, the court must impose the death penalty. Manifestly this is all subsequent to the determina

Opinion, per WANAMAKER, J.

tion of the guilt or innocence of the accused. It has nothing whatsoever to do with the qualifications of the jurors to impartially try the accused.

Clearly the foregoing examination of the venireman in the instant case discloses simply this, that his views touching murder in the first degree clearly established beyond a reasonable doubt that in such case he would not recommend mercy. It will not do to say that he would not consider the recommendation, because the very fact that he rejected such recommendation presupposes consideration.

Upon what theory of qualification of jurors should such answers disqualify the venireman?

It is a well-settled rule, under the statutes where the jury have nothing whatsoever to do with the penalty attendant upon their rendition of a verdict of guilty, that prejudice against crime does not disqualify the jury. Indeed, it is high time for courts to say that prejudice against crime should be a qualification for jury service. Would it be urged that a man who had no prejudice against crime was even a good citizen; to say nothing of a good juror? The criminal or quasi-criminal is the only individual known to the law who has no prejudice against crime. Hence he is the criminal. prejudice against crime disqualifies one from being a competent and impartial juror, then the only persons qualified for such jury service are of the criminal or quasi-criminal class.

If

The authorities, however, are uniformly settled that no matter what the degree or extent of the prejudice against crime, the prejudice will not dis

Opinion, per WANAMAKER, J.

qualify the juror so long as it is not against the prisoner personally; for he, indeed, in fact and in law, is presumed to be innocent.

One of the most ably and fully considered cases upon this question has become known as "The Anarchists' Case of Chicago," Spies et al. v. People, 12 N. E. Rep., 865, 867 (122 Ill., 1, 263), where it is held:

*

"A prejudice against anarchists is nothing more than a prejudice against crime, which would not force a jury to prejudge an innocent and honest man, and would not, therefore, disqualify a juror."

To the same effect is Leach v. State, 99 Tenn., 584, where it is held:

"That a juror had expressed the opinion that any man who waylays and kills another ought to be hung, does not disqualify him to try a case of murder committed by waylaying, as to the particular facts of which he has no opinion, or means of forming an opinion."

Also to the same effect is Cooper v. State, 162 S. W. Rep., 364 (72 Tex. Cr., 266), where it is held: "Where jurors stated on their voir dire that they had not formed any conclusion as to defendant's guilt or innocence, but that they had a prejudice against the crime with which accused was charged, they were not disqualified."

More directly in point is State v. Thorne, 39 Utah, 208. The judge rendering the opinion, at page 219, makes this observation:

"It needs no argument to show that the court undertook to guide and direct the jury in the de