jurors, then the majority rule should govern. However, it seems to us that the right to peremptory challenges is given to enable parties to excuse from the jury those whom they may, for any reason, feel would not make fair jurors even though nothing is disclosed on the voir dire. As a matter of actual experience, every practitioner knows that many jurors are excused because of known prejudices which counsel in the case do not wish to question the jurors concerning. Political and religious opinions, nationality, and other causes give rise to prejudice in the minds of many people, and very often, while this is known to the parties to the action, counsel would not wish to disclose that fact in the presence of other jurors. Again, parties to the action may have confidential information as to some juror's viewpoint, and knowing they would be unable, if a challenge for cause is denied, to substantiate it in any way, refuse to question the juror concerning it. It was to protect the rights of parties in just such cases as these that the right to the exercise of peremptory challenges was granted. . . . we are satisfied that the court committed prejudicial error in refusing the challenge, thereby compelling the appellant to peremptorily challenge the juror and thus lose the right of three peremptory challenges provided by statute."

WATSON v. WHITNEY.

SUPREME COURT, CALIFORNIA. 1863.

23 California 375.

APPEAL from the County Court of Napa County.
The facts are stated in the opinion of the Court.

CROCKER, J. delivered the opinion of the Court-COPE, C. J. and NORTON J. Concurring.

This is an action for forcible entry and detainer. The facts are substantially as follows: The tract of land in controversy was inclosed at the time of the forcible entry, which took place December 31st, 1862, and had been in the quiet and peaceable possession of the plaintiff or his tenants ever since 1856. On that day, Watson, the plaintiff, and several persons with him, went to the place where the defendant, with six or seven others, was engaged in constructing a small house. The plaintiff asked whose house is that, to which the defendant replied that it was his; and the plaintiff then demanded peaceable possession, to which the defendant answered that he could not have it. Whitney and those with him were armed; and the plaintiff then said, "I see you are all armed, and that is enough." One of the persons who went there with the plaintiff struck the house with an ax; and one of the defendant's party presented a pistol at him, and told him that if he struck again he would shoot him. He did not strike again, but replied that he would throw the ax at him

if he did not drop the pistol. These facts, which are not controverted, clearly show a forcible entry and detainer within the provisions of the statute, and within the rules laid down by this Court on that subject. There was an unusual assemblage of armed men with the defendant, and the plaintiff had just grounds to apprehend violence if he had attempted to retain possession, or remove the defendant from his land. Actual threats were also used of violence to the plaintiff or those who accompanied him. The jury that tried the case returned a verdict in favor of the plaintiff, on which judgment was rendered for restitution of the premises with treble damages, from which the defendant appeals.1

In impaneling the jury, the defendant propounded the following questions to each juror, which were objected to by the plaintiff and excluded by the Court, and this is assigned as error: "1st. Have you heard much conversation among the people in regard to the rights of the parties on the Suscol Rancho; and if so, have you formed or expressed an opinion in regard to those rights? 2d. Have you any bias or prejudice against that class of citizens on the Suscol Rancho commonly called squatters, of which class the defendant is one? 3d. Have you ever sat on any of these Suscol cases, similar to this case, as a trial juror?" It is not necessary to determine whether affirmative answers to these questions, or any one of them, would have formed a proper ground for a challenge for cause. Each party has a right to put questions to a juror, to show, not only that there exists proper grounds for a challenge for cause, but to elicit facts to enable the party to decide whether or not he will make a peremptory challenge; and the defendant had a right to put these questions, if they were pertinent for either purpose. He was entitled to an answer to these questions, to enable him to decide whether he would make a peremptory challenge; and the Court erred in refusing them. The judgment is therefore reversed, and the cause remanded for a new trial.3

2

PASCHEN v. UNITED STATES.

UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT. 1934.

70 Federal (2d Series) 491.

CHRISTIAN P. PASCHEN was convicted on two counts of an indictment charging him with attempt to defeat and evade taxes, and he appeals.1

1 A part of the opinion in which the court ruled adversely to the defendant on three other grounds of appeal is omitted.

2 See 1 Thompson, Trials (2d ed. 1912) § 101.

3 See 37 Harv. L. Rev. 500 (1924). Compare People v. Kroll, 315 Ill. 115 (1924).

+ Only so much of the opinion is given as relates to the examination of prospective jurors.

ALSCHULER, Circuit Judge. . . .

Error is charged in the action of the court in declining to permit appellant's counsel to question jurors on the voir dire. The questioning was by the court. It appears that when appellant's counsel asked the opportunity to examine the jurors individually, the court stated: "I will ask any question that is proper to be propounded that you suggest, but I will refuse your request that you be permitted to interrogate the jurors." Appellant relies on the Sixth Amendment to the Constitution, which guarantees to accused persons the right to the assistance of counsel in their defense, and cites in support of his contention the case of Donovan v. People, 139 Ill. 412. This case involved the direct question whether counsel may be required to ask such questions through the court, and it was decided that they may not. The case of Stephens v. People, 38 Mich. 739, is also cited, but it does not involve the precise point here in issue.

It has been authoritatively decided that in the impaneling of juries federal courts are not bound by state practice.1 Upon the question here involved the decisions of the federal courts have been numerous and uniform to the effect that it is within the discretion of the trial judge to permit or deny to counsel for the defense the privilege of personally examining veniremen on the voir dire. We find no Supreme Court case on the subject beyond the denial of certiorari in several of the cases cited.3

Affirmed.*

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 47. JURORS. (a) Examination of Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.5

1 A footnote by the Court is omitted.

2 A footnote by the Court citing numerous cases is omitted.

3 The remainder of the opinion is omitted.

The more usual state practice is to allow counsel to examine the prospective jurors directly.

5 The remainder of Rule 47 relates to alternate jurors.

BLACKSTONE, COMMENTARIES, vol. 3, * 357-* 358.

SPECIAL juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take indifferently forty-eight of the principal freeholders in the presence of the attornies on both sides: who are each of them to strike off twelve, and the remaining twentyfour are returned upon the panel. By the statute 3 Geo. II. c. 25. [1730] either party is entitled upon motion to have a special jury struck upon the trial of any issue, as well at the assises as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of the statute 24 Geo. II. c. 18. [1751]) that the cause required such special jury.1

SECTION 2

WITHDRAWING THE CASE FROM THE JURY
(1) Demurrer to the evidence

MIDDLETON v. BAKER.

COURT OF QUEEN'S BENCH. 1600.
2 Croke temp. Elizabeth 752 1

EJECTIONE FIRMAE. It was held by all the Court upon evidence to a jury, that if the plaintiff in an ejectione firmae, or other action, gives in evidence any matter in writing or record, or a sentence in the spiritual court (as it was in this case), and the defendant offers to demur thereupon, the plaintiff ought to join in the demurrer, or waive the evidence, because the defendant shall not be compelled to. put a matter of difficulty to lay gents, and because there cannot be any variance of a matter in writing: but if either party offers to demur upon any evidence given by witness, the other, unless he pleaseth, shall not be compelled to join; because the credit of the tes- . timony is to be examined by a jury, and the evidence is certain, and

1 Special or "struck" juries are allowed in some American states, usually under circumstances specified by statute. The general policy of most of these statutes is to allow either party the privilege of such a jury in cases of exceptional difficulty or importance. See Thompson and Merriam, Juries (1882) § § 12-15; 1 Thompson, Trials (2d ed. 1912) § 7.

2 Also reported, sub nom. Baker's Case, 5 Co. 104a.

may be enforced more or less,' but both parties may agree to join in demurrer upon such evidence. And in the queen's case, the other party may not demur upon evidence shewn in writing or record for the queen, unless the queen's counsel will thereto assent; but the Court in such case shall charge the jury to find the matter special, as appears 34 Hen. 8. Dyer, 53. But this is by prerogative.

In GIBSON V. HUNTER, 2 H. Bl. 187 (H. L. 1793), the House of Lords asked the advice of the judges as to whether the defendants in that case could "insist upon the jury being discharged from giving a verdict by demurring to the evidence, and obliging the plaintiff to join in demurrer." In delivering the answer to the judges, Lord Chief Justice EYRE said (pp. 206–207);

"All our books agree, that if a matter of record, or other matter in writing, be offered in evidence in maintenance of an issue joined between the parties, the adverse party may insist upon the jury being discharged from giving a verdict, by demurring to the evidence, and obliging the party offering the evidence to join in demurrer. He cannot refuse to join in demurrer, he must join, or waive the evidence. Our books also agree, that if parol evidence be offered, and the adverse party demurs, he who offers the evidence may join in demurrer if he will. We are therefore thus far advanced, that the demurrer to evidence is not necessarily confined to written evidence. The language of our books is very indistinct upon the question, Whether the party offering parol evidence should be obliged to join in demurrer. Why is he obliged to join in demurrer, when the evidence which he has offered is in writing? The reason is given in Croke's report of Baker's case [Middleton v. Baker, supra] because, says the book, "there cannot be any variance of matter in writing." Parol evidence is sometimes certain, and no more admitting of any variance than a matter in writing, but it is also often loose and indeterminate, often circumstantial. The reason for obliging the party offering evidence in writing, to join in demurrer, applies to the first sort of parol evidence, but it does not apply to parol evidence which is loose and indeterminate, which may be urged with more or less effect to a jury, and least of all will it apply to evidence of circumstances, which evidence is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of the existence of other facts. And yet if there can be no demurrer in such cases, there will be no consistency in the doctrine of demurrers to evidence, by which the application of the law to the fact on an issue is meant to be withdrawn from a jury, and transferred to the Judges. If the party who demurs will admit the evidence [existence?] of the fact, the evidence of which fact is loose and indeterminate, or in the case of circumstantial evidence, if he will admit the existence of

1 Sed Qu. for the demurrer admits the evidence to be true. REP.