law presumes the juror to be incompetent; and that presumption can be removed only by affirmative evidenee that his opinion was not formed on the knowledge of any fact derived from the witness, but from rumor.
Upon such trial, the party may object to the admission of evidence before the triers, or to the instructions of the court, and make them a part of the record by bill of exceptions.
If a party challenge a juror peremptorily when he is not obliged to do so, he waives his exception, and cannot avail himself on error of the exception thus abandoned. And this although he may exhaust his right of peremptory challenges.
The case of Dennis vs. State, (5 Ark. 231,) that the defect in the indictment in failing to set forth the style and term of the court, cannot be objected after verdict, approved. Also the cases deciding that the record must show that the indictment was preferred by a legally constituted grand jury; and where the transcript omits such showing, this court would ex officio issue a certiorari for the affirmance of the judgment. Further, that the circuit court, to which the case was removed on change of venue, may issue a writ of certiorari to the court where the indictment was found, to perfect the record.
Wherever a judgment of conviction, in a capital case, is reversed for error in the proceedings of which, without the statute allowing writs of error, he could not have availed himself by motion in arrest, and which he can only place upon the record by bill of exceptions, and of which he could not have availed himself by motion for new trial at the common law, it is no violation of his constitutional right to remand the cause to be tried again on the same indictment.
Appeal from Hot Spring Circuit Court.
ENGLISH and JORDAN, for the appellant. 1. The transcript does not show that the indictment, on which the appellant was tried
and convicted, was found by a competent, or any grand jury. This is a fatal defect, and the objection may be raised on error. 1 Ch. Cr. Law 333. Woodsides vs. The State, 2 How. (Miss.) R. 655. Carpenter vs. State, 4 ib. 163. Thomas vs. State, 5 ib. 20. Tipton vs. State, Peck. (Tenn.) R. 165.
2. The prisoner was, and is, entitled to his discharge, because of the failure of the State to prosecute with that legal diligence required by the statute, which provides that he shall be discharged, unless brought to trial before the end of the second term after indictment found, (sec. 179, p. 414, Dig.,) except in certain cases, (sec. 181, ib.,) and this cause was continued two terms, for
