If an issue of fact arise upon a challenge it is to be tried by the court. Benton, 19 (2 D & B.), 207.

Where a party did not exhaust his peremptory challeges, an objection to a juror, who could not have been rejected peremptorily, is not available. Bohanon, 142–695.

A defendant's exception for a refusal of his challenges for cause to four jurors, when he relieved himself of them by the use of his peremptory challenges, is not open to review where he, after exhausting his peremptory challenges, did not challenge any other juror. Sutton, 142-565.

If a party have a cause of challenge which he knows of before trial, and does not take it, he shall not have a new trial. McEntyre, 1-267.

Standing a juror aside to be called at the end of the panel is a challenge for cause by the state. Benton, 19 (2 D. & B.), 196.

Personal dislike of the juror toward the defendant is a good cause of challenge. Benton, 19 (2 D. & B.), 210.

Any person called as a juror may himself state to the court any matter of exception or excuse which he may have with respect to performing the duty, and if the court discharge him after ascertaining the facts neither party can except. Benton, 19 (2 D. & B.), 222.

When a challenge is made for indifferency the court tries the fact, unless one of the parties demands triers. Mercer, 67-266.

The state is entitled to four peremptory challenges in bastardy, it being a civil action, though the state is a party. Pate, 44-244.

A defendant has no right to postpone showing cause of challenge to a juror and have him stand aside until the panel is finished, this being exclusively the privilege of the state. Bone, 52-121.

The fact that one has served on the jury within two years is not a cause of challenge to a special venireman. Kilgore, 93-533.

FORMED AND EXPRESSED OPINION.-One who states that he has formed and expressed an opinion upon defendant's guilt based upon rumors, but that he is not so prejudiced that he could not render a fair and impartial verdict, is a competent juror. Green, 95-611.

WHEN JUROR HAVING EXPRESSED OPINION, COMPETENT.-Where' a juror says that he has formed and expressed the opinion that the prisoner is guilty, but that his mind is fair and unbiased, and that he can hear the evidence and render a verdict without being in any degree influenced by what he has heard or said, he is a competent juror. Kilgore, 93-533.

An exception to a finding that a juror is impartial can not be sustained where the juror declares that his adverse opinion had been founded on rumors and that he, after hearing the evidence, could render a fair and impartial verdict. DeGraff, 113-688.

Evidence that a juror had stated a few minutes before being called “that he could not serve because he had made up his opinion," will not entitle defendant to a new trial, because the first statement was not under oath and was contradicted by the oath of the juror who swore that he had not formed an opinion. Scott, 8 (1 Hawks), 25.

An exception to the ruling of the court as to the competency of a juror is without merit where he stated that notwithstanding he had formed and expressed an opinion that the defendant is guilty, he was yet satisfied that he could decide fairly and impartially as between the state and the defendant, and the court found that he was indifferent, the finding as to indifferency not being reviewable. Bohanon, 142-695.

A juror who has formed and expressed an opinion adverse to the defendant upon rumor, or upon hearing only part of the evidence, and the like, may be declared to be indifferent by the court, if the juror further states that

he can hear the evidence and give the defendant a fair trial. Ellington, 29 (7 Ired.), 66.

A juror who was on the grand jury that found the bill may be treated as having expressed an opinion. Benton, 19 (2 D. & B.), 209.

The law infers bias from a decided opinion expressed, and the belief of the person so biased that he can rise superior to its influence, does not repel the legal inference. Benton, 19 (2 D. & B.), 217.

A merely hypothetical opinion founded on the supposition that facts are as they have been represented or assumed to be does not constitute a cause of principal challenge, but may be allowed according to the fact of favor or indifferency. Benton, 19 (2 D. & B.), 213.

A principal challenge is one because of expressed favor, or favor apparent, and one which is conclusive as matter of law. Benton, 19 (2 D. & B.), 213. A juror may be examined as to opinions formed and expressed manifesting a bias of judgment no referrable to personal partiality or malevolence. Benton, 19 (2 D. & B.), 211.

Where a decided opinion is expressed the law infers bias, and the belief of the person so biased that he can rise superior to its influence and find a verdict according to the evidence does not repel the legal inference, since such a belief often arises from ignorance of the stubbornness of prejudice. Benton, 19 (2 D. & B.), 217.

CHALLENGE TO THE ARRAY.-A challenge to the array on the ground that the prisoner is a person of color, and no person of his own color is summoned on the special venire, can not be sustained. The right to a jury de medietate lingua is not a principle of common law, and never obtained in this state. Sloan, 97-499.

The action of a trial judge in determining the qualifications of a juryman, if erroneous, is ground for challenge to the array by a motion to quash and set aside the entire panel, and, in the absence of such challenge a defendant can not be allowed to take advantage of the alleged error after trial and judgment. Moore, 120-570.

The fact that the sheriff's return to a writ for a special venire states that he had not summoned one juror because he was dead, and had not summoned three others because they could not be found, is no ground for a challenge to the array. Speaks, 94-865.

The integrity and fairness of the entire panel are not affected by the fact that one man named in the writ had removed from the county; that another was dead when the list was revised; that one was not summoned, nor by the fact that the sheriff, in copying the list omitted, by mistake, the name of one who in consequence was not summoned. Whitt, 113-716.

The jurors were selected from a special venire summoned from the general jury list irrespective of their qualifications as freeholders, instead of from a renire of freeholders only, as required by sections 1738 and 1739 of The Code, but none but qualified freeholders were impaneled, and there was no challenge to the array: Held, that the defendant was not prejudiced by such method of summoning the jurors. Moore, 120-565.

In the absence of any allegation that the sheriff acted corruptly or with partiality in summoning the venire, or that anything had been done affecting the "integrity and fairness of the entire panel," it is not a ground of challenge to the array that the sheriff failed to summon several of the special tenire drawn from the jury box or that the jury box was not revised by the county commissioners. Stanton, 118–1182.

Where a challenge to the array is sustained because of irregularities in revising the jury lists, and the lists are subsequently revised and all the old scrolls destroyed, and an entirely new list made, a challenge to the array at a subsequent term on the ground that the old scrolls were destroyed and

that they contained the names of persons eligible as jurors is properly overruled. Teachy, 138-587.

The jury lists should be revised at the time and place the law directs, but if this is not done, and the revision is properly made at another time and place, such action will be treated as an irregularity, not vitiating the revision, since the provisions of the statute are directory and not mandatory. Teachy, 138-587.

CHALLENGE BY ONE DEFENDANT AFTER JUROR ACCEPTED BY THE OTHER.— J and O being both on trial, a juror was tendered to J and accepted, but was then tendered to O who challenged him peremptorily, and he was stood aside, and J excepted. J exhausted his peremptory challenges before a jury was obtained: Held, that J had no right to complain of a challenge by his co-defendant, as the right of challenge is a right to reject and not to select. Jacobs, 106-695.

CHALLENGE TO THE FAVOR.-A challenge to the favor is properly sustained where it appears that the juror is attending court, whether under subpœna or not, in the expectation of being called as a witness for the opposite party, and the danger of bias is not removed by showing that he has no knowledge of the material facts of the case, but expected to testify only as to the character of the defendant. Barber, 113-711.

RELATIONSHIP OF JUROR.-The fact that the great-grandmother of a juror was the sister of the grandmother of the prisoner, brings the juror within the ninth degree of kinship to the prisoner, and he may be properly challenged by the state. Perry, 44 (Bush.), 330.

A juror related to the prisoner within the ninth degree may be properly rejected upon challenge by the state. Potts, 100-457.

Where it appears that the juror's wife was cousin to the prisoner's former wife, who is now dead, leaving no children, there is no cause of challenge, the affinity having ceased with her death. Shaw, 25 (3 Ired.), 532.

The fact that a juror is first cousin to the prisoner is no good cause of challenge by the prisoner, unless ill feeling or bad blood is shown to exist between them. Ketchey, 70-621.

Where, a juror, already in the box, after he has been passed to and accepted by the defendant, rises and states that he has served on the jury within two years past, it is not error in the court to then allow a challenge by the state. Following State v. Jones, 80-415. Vestal, 82-563.

WHERE JURY IS OBTAINED BEFORE PEREMPTORY CHALLENGES EXHAUSTED.— Where a jury is obtained before the prisoner exhausts his peremptory challenges, an exception for error in overruling a challenge for cause can not be considered. Pritchett, 106-667.

PREJUDICE AGAINST COLORED PERSONS.-A colored person on trial for crime has a right to challenge a juror who "believes that he can not do impartial justice between the state and a colored person," and the cause of challenge, if sustained, is good. McAfee, 64–339.

FREEHOLDER.—A special venireman drawn for criminal court of New Hanover, under Laws 1885, c. 63, is not required to be a freeholder. Freeman,

100-429.

WHEN ERROR IN REFUSING CHALLENGE REMOVED.-Error in refusing to allow a challenge is removed when the juror is then peremptorily challenged, and the prisoner obtains a jury without exhausting his peremptory challenges. Freeman, 100–429.

SERVING ON JURY WITHIN TWO YEARS.-A juror of the original panel can not be challenged on the ground that he has served upon a jury in the same court within two years. Brittain, 89-481.

TENANT BY THE CURTESY.-A tenant by the curtesy initiate is a freeholder under the statute. Mills, 91-581.

CHALLENGE BY THE STATE AFTER PASSING.-It is error to permit the state to peremptorily challenge a juror after he has been passed by the state and tendered to the prisoner. Fuller, 114-885.

WHEN JUROR AN ATHEIST.-It is not error to refuse a motion for a new trial after a verdict of guilty, on the ground that one of the jurors was an atheist, and that fact was not discovered until after verdict. A challenge for such cause not made before the juror is sworn, is deemed to be waived. Davis, 80-412.

WHEN PROSECUTOR QUALIFIED AS A JUROR.-A person is not qualified as a juror for the reason that he is the prosecutor in another criminal action to which the defendant has not pleaded. Brady, 107—822.

NON-RESIDENT JUROR.-The fact that a juror is not a resident of the county in which the indictment is tried, is a good ground for challenge, but not for a new trial after verdict is rendered. White, 68-158.

CAUSE ADMITTED-EFFECT OF ADMISSION.-Where the cause of challenge is admitted by the state, the prisoner is bound by his challenge, and can not afterwards have the matter tried. Creasman, 32 (10 Ired.), 395.

MISDEMEANOR.-A challenge for cause may be made in a trial for a misdemeanor. Fulton, 66-632.

CIGARETTES.

Sec. 122 (3804). Cigarettes to minors.

If any person shall sell, give away or otherwise dispose of, directly or indirectly, cigarettes, or tobacco in the form of cigarettes, or cut tobacco in any form or shape which may be used or intended to be used as a substitute for cigarettes, to any minor under the age of seventeen years; or if any person shall aid, assist or abet any person in selling such articles to such minor, he shall be guilty of a misdemeanor, and upon conviction shall be punished by fine or imprisonment in the discretion of the court.

1891, c. 276.

Sec. 123 (3805). Cigarettes to minors, aiding.

If any person shall aid or assist any minor child under seventeen years of age in obtaining the possession of cigarettes, or tobacco in any form used as a substitute therefor by whatsoever name it may be called, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned in the discretion of the court.

If any person between the first day of April and the first day of November of any year shall take any clams from the waters of Brunswick, New Hanover or Pender counties for the purpose of

shipping, selling, marketing, or for bedding or pounding the same in any artificial bed, or if any person shall take or catch any oysters in the waters of Carteret county by dredging or scoops, or in any manner other than with the ordinary clam rake, or tongs, or if any non-resident shall take or catch any clams, he shall be guilty of a misdemeanor.

1901, c. 113; 1897, c. 333; 1899, c. 579; 1903, cc. 131, 414, 658, 732.

Under the above sections private clam beds may be laid off in public waters, and persons indicted for taking clams therefrom. Goulding, 131-715.

COMMENTS OF COUNSEL.

See also ARGUMENT OF COUNSEL.

It is the duy of the court, if counsel state facts as proved upon which no evidence has been given, to correct the mistake, and this may be done at the time or in the charge. O'Neal, 52 (7 Ired.), 251.

The omission of the solicitor to introduce one of his witnesses is a proper subject of comment by defendant's counsel. Smallwood, 75–104.

Where the judge promptly interferes and cautions the jury that the improper remarks should not be permitted to make any impression on their minds unfavorable to the defendant, and it does not appear that the remarks complained of had any prejudicial effect, a new trial will not be granted. Rivers, 90-738. Wilson, 90-736.

Where a written order is introduced as corroborating evidence, the existence of such order and not its contents is the important fact, and whether the witness could read or not, or whether the contents were proved or not, the fact that the witness got a pair of boots with such order is a legitimate circumstance for the jury and for the comment of the solicitor. Capps, 71-93.

It is not error for a prosecuting officer to comment on the personal appearance of the defendant in reply to remarks of defendant's counsel calling attention to his appearance. Underwood, 77-502.

It is not improper in a prosecuting officer to comment on the fact that the defendant had sworn a witness and afterwards declined to examine him. Jones, 77-520.

Defendant, on trial for selling liquor, was asked by the solicitor if he had not been charged with the murder of a certain person, and answered that he had, but that the grand jury had ignored the bill; the solicitor, in addressing the jury, said that this person's murder was caused by the "moonshine business," and that it must be broken up, and, upon objection being made by defendant's counsel, the solicitor stated that he did not charge the defendant with that murder, that he would take it all back, but did say that the murder was caused by the moonshine business, and that it should be broken up. The court did not interpose, nor make any comment, nor caution the jury: Held, that the remarks of the solicitor were improper, entitling the defendant to a new trial. Tuten, 131-701.

The discharge of one of three defendants and the entry of a verdict of not guilty as to another are proper subjects of comment by counsel for the other defendant. Hall, 132–1094.