Swearing tb e jury. At common law it appears to have been the practice to swear each juryman as he is drawn and accepted; JOIConf. 220; State v. Potter, 18 Conn. 166. The present practice is to swear the entire jury after the panel is completed. Either practice is lawful; People v. Reynolds, 16 Cal. 128. It is not irregular to swear all the jurors when the court opens, to try all the issues that may be brought before• them; Thomp. & Merr. Juries 318; People v. Al bany Court of Common Pleas, 6 Wend. (N. Y.) 548. But this practice has been dis approved of in criminal cases on the ground of the salutary effect both on the prisoner and the jury of the formality of administer ing an oath in the presence of the prisoner ; Barney v. People, 22 Ill. 160. It is also con sidered the better practice in criminal cases to have the panel full before the oath is administered ; Thomp. & Merr. Juries 319; O'Connor v. State, 9 Fla. 215.
The impanelling and final acceptance of a jury by a court is a judicial determination that the jurors are competent ; and if any objection to the qualifications of a juror is known to a party before such determination, it cannot be raised afterwards, unless on ex ception to the overruling of a challenge; People v. Scott, 56 Mich. 154, 22 N. W. 274.
If, after a jury is sworn, a juror becomes incompetent, the entire jury should be dis charged ; but if a juror never was compe tent, a twelfth juror may be sworn in his place; State v. Ronk, 91 Minn. 419, 98 N. W. 334.
In 1 Cox C. C. 150, a juror became ill in the midst of the trial, the jury was then dis charged, a new juror was drawn and the eleven jurors were resworn and the evidence recapitulated ; so in De Berry v. State, 99 Term. 207, 42 S. W. 31, as to either a civil or criminal trial ; to the same effect, State v. Davis, 31 W. Va. 390, 7 S. E. 24. If a sworn juror becomes ill before the panel is made up, a new juror may be selected ; State v. Moncla, 39 La. Ann. 868, 2 South. 814. If a juror becomes insane pending a criminal tri al, the court should declare a mistrial and proceed de novo; Dennis v. State, 96 Miss. 96, 50 South. 499, 25 L. R. A. (N. S.) 36.
The parties are entitled to fresh challenges against the entire new jury ; Turner v. Ter ritory, 15 Okl. 557, 82 Pac. 650; contra, State v. Hazledahl, 2 N. D. 524, 52 N. W. 315, 16 L. R. A. 150; State v. Nash, 46 La. Ann. 194, 14 South. 607. See note to Dennis v. State, 25 L. R. A. (N. S.) 36.
Influencing the jury. An attempt to in fluence a jury corruptly by promises, per suasions, entreaties, money, entertainments, and the like is a misdemeanor at common law ; State v. Brown, 95 N. C. 685; 2 Bish. Cr. L. 384; Gibbs v. Dewey, 5 Cow. (N. Y.) 503. Arguments of counsel in open court at, the trial of a cause are a legitimate use of influence and are not within this rule, but it would be a crime to take advantage of the opportunity afforded in order to influence the jurors corruptly; People v. Myers, 70 Cal.
582, 12 Pac. 719. Where an attempt to in fluence a jury, amounting to embracery, is made, it is immaterial whether they give any verdict or not, and if they give a verdict, it is no defence that it is a true one. This crime may be committed by a juror if he corruptly attempts to influence other jurors; Cl. Cr. L. 326 ; or if he by indirect practices gets himself sworn on the tales to serve on one side ; 1 Litt. 573.
Misconduct of Jurors. The giving of testi mony by a juror to his associates in the jury room is misconduct ; Richards v. State, 36 Neb. 17, 53 N. W. 1027 ; Ellis v. State, 33 Tex. Cr. R. 508, 27 S. W. 135; but in order to obtain a new trial on the ground of mis conduct, injury to the party must be shown ; Medler v. State, 26 Ind. 171; State v. Cross, 95 Ia. 629, 64 N. W. 614 ; Com. v. Roby, 12 Pick. (Mass.) 496 ; a new trial was granted because a juror stated in the jury room that the defendant had hit the prosecutor on the head with an ax-handle on a former occa sion ; Mann v. State, 47 Tex. Cr. R. 250, 83 S. W. 195; but probably the granting or de nial of a motion for a new trial for miscon duct of the jury is largely in the discretion of the court ; People v. Johnson, 110 N. Y. 134, 17 N. E. 684; Com. v. White, 147 Mass. 76, 16 N. E. 707.
Where each of the jurors set down the term of imprisonment and divided the sum by twelve, but did not agree in advance to be bound by the result, the verdict could not be questioned; McAnally v. State (Tex.) 57 S. W. 832.
As to the effect of improper influence on, or misconduct of, the jury, see NEW Traet.
Separation during trial. At common law the jury was kept together until they had agreed upon their verdict. Even the right to adjourn a trial from day to day was doubt ed; 24 How. St. Tr. 414. At present jurors in civil cases are allowed to separate each day; and so in trials for misdemeanors, at the discretion of the court. In some cases also in trials for felony, even in capital cases. But in an able work the opinion is main tained that in cases of capital felonies the jury should not be allowed to separate, as they were not at common law ; Thonap. & Merr. Juries 367; but absolute isolation is not required ; they may be kept under the charge of a sworn officer who shall exercise a reasonable oversight ; id. 370. The officer in charge must be sworn ; 2 Hale, P. C. 296 ; although if he be a sheriff or constable and ex officio in charge of the jury, he need not be specially sworn ; Meyer v. Foster, 16 Wis. 294.