Walker,  who  was  summoned  as  a  jaror  in  this  case,  after  exam-
ination by  the  state,  was  tendered  to,  and  excepted  by,  tbe  pris-
oner as  a  juror.  It  also  appears,  fivim  affidavits  filed  in  support
of  tbe  motion  for  a  new  trial,  that  said  Walker  was  at  the  time
an  unnaturalized  foreigner,  and  that  this  fact  was  unknown  to
the  prisoner  or  to  his  counsel  until  after  tbe  rendition  of  tbe
verdict

By  the  express  terms  of  the  statute.  Code,  497,  art.  126,  the
said  Walker  was  disqualified  to  act  ae  a  juror  in  the  case,  and
would,  hence,  iiave  been  set  aside,  if  his  want  of  qualification
hod  been  made  known  to  the  court,  unless  the  objection  had
been  waived  by  tbe  defendant.  Tbe  question,  then,  here  to  be
considered,  is,  whether  the  plaintiff  in  error,  who  bad  it  com-
pletely in  his  power  to  ascertain  whether  the  juror  tendered  to
him  was  not  disqualified,  must  not  be  held  to  have  waived  the
objection.
