INTENT.-The legislature intended to remove the strict and stringent rule which existed before the statute of 1872, and which attached a disquali fication to the fact of forming and expressing an opinion. Balbo v. People, 80 N. Y. 494.

PARTICULAR.-A challenge is particular when the objection is to the effect that the juror is disqualified from serving in the cause on trial. People v. Welch, 1 N. Y. Cr. 488.

RANGE OF EXAMINATION.-The range of examination on a challenge under subd. 2 of this section, must largely rest in the discretion of the court. People v. O'Neill, 14 St. Rep. 829; 109 N. Y. 264; 6 N. Y. Cr. 53. The district attorney, in this case was permitted to state that the people expected to examine accomplices as witnesses, and to follow it by the direct inquiry as to the juror's state of mind in respect to witnesses in the situation of accomplices, wità a view of ascertaining whether he will be a fair and unprejudiced juror for the people.

The existence of the state of mind on the part of the juror, in reference to the case or to either party, is a proper subject of inquiry, to ascertain whether the juror has, or has not, actual bias. People v. O'Neill, 5 N. Y. Cr. 326.

An acceptance by defendant of the jury selected and his consent to their sitting, operate as a waiver of his objection to the allowance of erroneous questions on the examination of a proposed juror. People v. O'Neill, 14 St. Rep. 829; 109 N. Y. 264; 6 N. Y. Cr. 53.

DETERMINED BY COURT.-It is for the trial court to determine whether the juror entertains such an opinion or impression as will influence his verdict. People v. Otto, 4 N. Y. Cr. 155.

The question of a juror's competency is to be determined as a fact. People v. Welch, 1 N. Y. Cr. 489; Balbo v. People, 80 N. Y. 494. Each case must rest upon its own peculiar features. Id.

WHEN QUALIFIED.-Where the trial court is justified in being satisfied that the juror does not have any present opinions, which will influence his verdict, the challenge for bias is properly overruled. People v. Crowley, 4 N. Y. Cr. 170.

An opinion or impression, which does not implicate the defendant, or in any manner predetermine the point of his guilt, will not disqualify the person entertaining it as a juror. People v. Buddensieck, 4 N. Y. Cr. 252.

Section 376 makes no discrimination between opinions formed from the reading of the testimony upon a former trial and those based upon inform ation gathered from other authentic sources. People v. McGonegal, 48 St. Rep. 904; 136 N. Y. 70.

In determining the fact of indifference, there is a wide distinction to be noted between an opinion based upon the testimony given on a former trial, and one formed after reading the proceedings upon the inquisition of a coroner. Id.

A juror, who has read of the transaction, and formed an opinion, but notwithstanding states that he thinks that he can render an impartial ver

dict according to the evidence, is competent, and unless peremptorily challenged, may sit in the case. People v. Martell, 51 St. Rep. 679; 138 N. Y. 595.

Such an opinion or impression as the juror can lay aside, and then render an impartial verdict according to the evidence, does not disqualify. People v. Otto, 4 N. Y. Cr. 155.

A juror, who states that he has formed an opinion which will require evidence to remove, but can nevertheless go into the jury box and render an impartial verdict upon the evidence, without being influenced by such opinion, is competent within this section. People v. Buddensieck, 3 St. Rep. 664; 103 N. Y. 497.

Where the juror declares on oath that he has no opinion which will influence him in his consideration of the evidence or in the verdict, the trial court is warranted in overruling the challenge. People v. Otto, 38 Hun, 99; 4 N. Y. Cr. 152.

The substance of the acts of 1872 and 1873, so far as this point is concerned, is incorporated in section 376 of the Criminal Code. Id.; Thomas v. People, 67 N. Y. 218: Phelps v. People 72 id. 334; Balbo v. People, 80 id. 484; Cox v. People, id. 500; People ex rel. Phelps v. Court, etc., 83 id. 436; Abbott v. People, 36 id. 460.

In the cases of Greenfield v. People, 74 N. Y. 277, and of People v. Casey, 96 id. 115; 2 N. Y. Cr. 194, there were facts which, the court of appeals thought, took them out of the line of the above cited authorities. People v. Otto, ante.

A juror who, upon examination as to his qualifications, testifies that he has read newspaper accounts of, and heard conversation about, the murder, and has some opinion or impression as to the defendant's guilt which may take some testimony to remove, but believes that such opinion or impression will not influence his verdict and he can render an impartial verdict according to the evidence, is competent within this section. People v. Wilson, 15 St. Rep. 503; 109 N. Y. 351; People v. Greenfield, 74 N. Y. 277; People v. Balbo, 80 id. 493; People v. Abbott, 86 id. 467; People v. Casey, 96 id. 115; People v. Otto, 101 id. 690; People v. Carpenter, 1 St. Rep. 648; 102 N. Y. 238.

Where a juror states that he has formed, from reading the newspapers, an opinion in regard to the guilt or innocence of the accused, and that it will require strong evidence to remove it, but finally says that he can decide upon the testimony he hears in court uninfluenced by anything else whatever, the challenge is properly overruled. People v. Wah Lee Mon, 37 St. Rep. 286.

Where the evidence shows that, notwithstanding the impression which a report in a newspaper may have made upon his mind, the juror can and will decide the case according to, and be governed by, the evidence, the mere fact that he states that the impression, which he received from such accounts, will remain until he hears the evidence in the case, in no way disqualifies him. People v. McGonegal, 42 St. Rep. 310.

Where a juror has read the newspaper reports of the proceedings before the coroner's jury, which the district attorney announced was the same as would be offered at the trial, and has formed and expressed an opinion, based upon the information thus obtained, as to the guilt or innocence of the defendant, he is competent to serve, provided he makes the declaration under oath required by subd. 2 of this section. People v. McGonegal, 48 St. Rep. 904; 136 N. Y. 71.

The personal appearance and demeanor of the juror and the intelligence exhibited by him upon his examination are important factors in reaching a just conclusion in all such cases. Id.

TEST OF COMPETENCY.-What the law requires to render a person entertaining an opinion, a qualified juror in a criminal case, is that he shall be able to, and shall, swear that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict, according to the evidence. People v. Buddenseick, 3 St. Rep. 664; 4 N. Y. Cr. 253; 103 N. Y. 486. If the court is satisfied of the truth of such statements, he is a competent juror, though he still retains such opinion in all its force. Id.

The proposed juror must be able to declare on oath that he believes he is in such a state of mind that he can weigh the evidence impartially, uninfluenced by any opinion or impression which he has formed. People v. Casey, 96 N. Y. 125; 2 N. Y. Cr. 203; People v. Willett, 36 Hun, 502; 3 N. Y. Cr. 325.

It is not necessary that the juror, in his examination, shall swear in the very words of this section. People v. Martell, 51 St. Rep. 679; 138 N. Y. 595. It is not necessary that the declarations required by this section, be made literally. People v. Casey, 96 N. Y. 123; 2 N. Y. Cr. 201.

It is enough if they are made in substance. Id.

The juror is not required to say on oath that he knows, but only that he believes, that he will not be influenced by his previous or present opinion or impression, and that he believes he can render an impartial verdict. People v. Willett, 36 Hun, 503; 3 N. Y. Cr. 326.

A juror who has read and talked about the case and formed an opinion of the guilt or innocence of the accused, but who declares on oath that his opinion would not influence his verdict, and that he could render an impar. tial verdict according to the evidence, is competent. People v. Cornetti, 92 N. Y. 85; 1 N. Y. Cr. 305; 16 W. Dig. 442.

A juror, who has an impression as to the guilt or innocence of the accused, is competent within the established rule, if he testifies that he will be governed by the evidence, that his previous impression will not influence his verdict, that it is his belief that he can render an impartial verdict ac cording to the evidence, and that he will give the accused the benefit of every reasonable doubt, and acquit him if such doubt exists. People v. Clark, 2 St. Rep. 543; 1 Silv. (Ct. App.) 166; 102 N. Y. 735.

The fact that a juror has formed an opinion as to the guilt or innocence of the prisoner, is no longer, in any case, a legal disqualification, provided

he makes the declaration specified in this section. People v. Welch, 1 N. Y. Cr. 489; Cox v. People, 80 N. Y. 513.

An existing opinion by a person, called as a juror, of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification; but it is not a conclusive objection, provided the juror makes the declaration specified, and the court, as judge of the fact, is satisfied that such opinion will not influence his action. People v. McQuade, 18 St. Rep. 288; 110 N. Y. 284; 21 Abb. N. C. 444; 6 N. Y. Cr. 1. It does not satisfy the requirement of this section if the declaration is qualified or conditional. Id.; People v. McGonegal, 48 St. Rep. 903; 136 N. Y. 70.

FOREIGN NATIONALITY.-The question as to the capacity of a juror of foreign nationality to understand the language in which court proceedings are conducted, his general intelligence, his power of comprehending the evidence as offered by the witnesses, and many other points, must necessarily be considered by the court in determining the general competency of a juror. People v. Spiegel, 56 St. Rep. 727; 75 Hun, 161; 26 N. Y. Supp. 1041. In the case last cited, the trial court held, from what appeared before it upon the examination of the juror, that he was not competent to serve, because of his possible unfamiliarity with the language, and because his business was such that his attention would be distracted. The appellate court held that such finding should not be lightly interfered with, and that it was not so clearly shown that the juror was competent that it would reverse the conviction upon such ground. DISQUALIFIED.-A person is not a competent juror, where the defendant is required to introduce evidence to remove a strong impression, before his verdict can be secured. People v. Tyrrell, 3 N. Y. Cr. 147.

A juror who, on challenge, testifies in substance that he will not give the proper effect to the testimony of an accomplice or informer, where such witness will be sworn on the part of the People, is not indifferent between the parties. People v. Mahony, 56 St. Rep. 143; 73 Hun, 601; 26 N. Y. Supp. 257.

A juror, who has an opinion as to the guilt or innocence of the pris oner, which he describes as fixed and of long standing, and which will influence his conduct in the jury box, is properly rejected. People v. Wood, 43 St. Rep. 294; 131 N. Y. 619.

A challenge to a juror by the people is properly sustained, where he states that he will follow his own view as to the weight to be given to circumstantial evidence in disregard of the instructions of the court. People v. Fanshawe, 47 St. Rep. 331; 8 N. Y. Cr. 326; 65 Hun, 77.

Unless the three things specified in section 376 of the Criminal Code concur, a person who has formed or expressed an opinion in reference to the guilt or innocence of the defendant, is disqualified to sit as a juror. People v. Casey, 96 N. Y. 118; 2 N. Y. Cr. 197.

Where a juror states, in substance, that he will hesitate to convict, even where the circumstances are of such a character as to establish guilt beyond a reasonable doubt, a challenge on the part of the people is prop

The act of 1872 has been literally incorporated into subd. 2 of section 376 of Code of Criminal Procedure, and the act of 1873, authorizing a review of the findings of fact of the trial court upon such a challenge was repealed when this Code took effect. People v. McGonegal, 48 St. Rep. 903; 136 N. Y. 68. The right to review in such cases is now controlled by .section 455 of said Code. Id

Under the provisions of section 455, above mentioned, the right to review upon appeal is limited to a decision of the trial court upon a matter of law by which the substantial rights of the defendant are prejudiced; and, where the disallowance of challenges is based upon some evidence to sustain it, the decision is final and conclusive and not reviewable in the court of appeals. Id.

The decision at the trial as to the indifference of a juror is not reviewable in the court of appeals, except in the absence of sufficient evidence to support it, and cannot be reviewed, if the challenge is overruled, unless the evidence discloses a condition of mind on the part of the juror, which, as matter of law, renders him incompetent for actual bias, after applying the test allowed by subdivision 2 of section 376 of the Criminal Code. Id.; People v. McQuade, 18 St. Rep. 288; 110 N. Y. 301.

There has been some misapprehension as to the rule governing appellate courts in reviewing decisions of trial courts overruling challenges for cause made by defendants in criminal cases. People v. Larubia, 55 St. Rep. 457; 140 N. Y. 87; aff'g 53 St. Rep. 415.

In Freeman v. People, 4 Denio, 9, some of the challenged jurors were allowed to sit and others were peremptorily challenged, after the challenge for cause by the defendant had been overruled. It was held that, as to the jurors who, after challenge for cause had been overruled, were excluded upon peremptory challenge, the exceptions taken upon the trial of the challenge were unavailable. The decision of the court in this case, that the use of a peremptory challenge, after challenge for cause has been overruled, precludes the party from availing himself of any exception taken upon the trial of the challenge for cause, has never been overruled. See People v. Larubia, ante. This point was not involved in the case of People v. McQuade, 18 St. Rep. 288; 110 N. Y. 284. The doctrine was explained and, perhaps, qualified in People v. Casey, 96 N. Y. 115, which held that it did not apply in a case where it appeared that, before the jury were fully impanelled, all the peremptory challenges of a defendant had been exhausted.

The cases of People v. Bodine, 1 Denio, 281, and Freeman v. People, 4 Id. 9, established the principle that an error in the ruling of the trial judge on the trial of a challenge for cause, interposed by the defendant, to which exception was duly taken, was not waived by the omission of the defendant to exercise the right of peremptory challenge though, when the jury was completed, he had peremptory challenges unused.

The Court of Appeals, in People v. McQuade, 18 St. Rep. 288; 110 N. Y. 284, followed the decisions in People v. Bodine and Freeman v. People, supra upon this point. See People v. Larubia, ante.