A common jury is one drawn in the usual and regular manner.
A grand jury is a body organized for cer tain preliminary purposes.
A jury de snedietate Ungum is one com posed half of aliens and half of denizens.
Such juries might formerly be claimed, both in civil and criminal cases, where the party claiming the privilege was an alien born, by virtue of 28 Edw. III. c. 13, and by an earlier statute, where one party was a foreign merchant; 27 Edw. III. c. 8. Such a jury was provided in criminal cases by a statute of Edward I. It was abolished by 33 Viet. c. 14. The right has been recognized in this coun try; Respublica v. Mesca, I Dail. (Pa.) 73, 1 L. Ed. 42; People v. McLean, 2 Johns. (N. Y.) ast; Richards v. Com., 11 Leigh (Va.) 690; contra U. S. v. McMahon, 4 Cra. C. C. 573, Fed. Cas. No. 15,699 ; State v. Antonio, 11 N. C. 200. It has been general ly abolished by statute; Thomp. & Merr. Juries 19 ; excepting in Kentucky, where it still exists; id.
A petit or traverse jury is a jury who try the question in issue and pass finally upon the truth of the facts in dispute. The term jury is ordinarily applied to this body dis tinctively.
A special jury is one selected by the as sistance of the parties.
This is granted in some cases upon motion and cause shown, under various local provisions. The method at common law was for the officer to return the names of forty-eight principal freeholders to the proper officer. The attorneys of the respective par ties, being present, strike off each twelve names, and from the remaining twenty-four the jury is selected. A similr course is pursued in these states where such juries are allowed. See 3 Sharsw. Bla. Com. 357. The earliest rule of court on the subject was made in S Will. III.; 1 Salk. 405. It formerly was granted only in cases of special consequence or great difficulty ; but later, a special jury has usually been granted in ordinary cases. In some states such a jury is of course ; in New York, statutes provide for such only in cases of special importance or in tricacy, as to which the court must decide.
A struck jury is a special jury. See Cook v. State, 24 N. J. L. 843.
Trial by jury is guaranteed by the con stitution of the United States in all crira inal cases except upon impeachments, and in all suits at common law where the sub ject-matter of the controversy exceeds twen ty dollars in value.. The right to such a trial is also provided in many of our state consti tutions. It has been held, however, not to be an infringement of this federal constitutional right, where a statute provides that in all criminal prosecutions the party accused, if he shall so elect, may be tried by the court instead of by a jury; Miller, Const. U. S.
494; Coleman v. Edwards, 5 Ohio St. 57 ; Ward v. People, 30 Mich. 116; State v. Wor den, 46 Conn. 349, 33 Am. Rep. 27. It was held that a jury trial may be waived when there is a positive legislative enactment giv ing the right to do so ; Hallinger v. Davis, 146 U. S. 314, 13 Sup. Ct. 105, 36 L. Ed. 986. This clause of the constitution does not ap ply to state courts; Hare, Am. Const. L. 860; Eilenbecker v. District Court, 134 U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801; Edwards v. Elliott, 21 Wall. (U. S.) 557, 22 L. Ed. 487; Cooley, Const Lim. 410; Williams v. Hert, 110 Fed. 166, where it was also held that when a state was admitted to the Union "on an equal footing with the original states in all respects whatsoever," no right of trial by jury in criminal cases is guaranteed, al though it had been secured by the ordinance and acts of congress for the government of the territory out of which the state was cre ated. The states may, therefore, in their own constitutions, dispense with trial by jury both in civil and criminal cases ; Ordron. Const. Leg. 261; and cases swpra; or provide that a jury shall consist of less than twelve; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597 ; In re Mc Kee, 19 Utah, 231, 57 Pac. 23 ; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 ; Mis souri v. Lewis, 101 U. S. 22, 25 L. Ed. 989. ' It does not apply to cases in the court of claims ; McElrath v. U. S., '102 U. S. 26 L. Ed. 189; nor to proceedings for disbar ring an attorney ; Re Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552 ; nor for assess ing damages; Raymond v. R. Co., 14 Blatchf. 133, Fed. Cas. No. 11,593 ; nor to equity cases in the federal courts ; Barton v. Barbour, 104 Ti. S. 126, 26 L. Ed. 672; nor to cases where the right is antecedently and volun tarily relinquished ; Bank of Columbia v. Okely, 4 Wheat. (U. S.) 235, 4 L. Ed. 559; nor does a ,like provision in a state constitu tion apply to any proceedings in which a jury was not required at common law ; e. g., a justice's court ; Vaughn v. Scade, 80 Mo. 600; Knight v. Campbell, 62 Barb. (N. Y.) 16 ; nor to any court which exercised its functions without the aid of a jury prior to the adoption of a constitution ; Thomps. & Merr. Juries 11; People v. Justices of Court of Special Sessions, 74 N. Y. 406.