b. OFFICERS.-In an increasing number of States the list is made up by special boards; in some by special officers in conjunction with other county officers, as in Arkansas, California, Colorado, Florida, Georgia, Illinois, Kansas, Minnesota, Mississippi, Nebras ka, North Carolina, New Mexico, Pennsylvania, South Carolina and Texas; 1 in Kentucky and Texas by boards of jury commissioners only. In the New England States the selection is made by town authorities,3 and the venire is issued to them. In New York, Kansas, Wisconsin and Michigan, the result is certified by the town authorities to the county clerks. In Iowa and Ohio the selection is made on the occasion of the general election, the lists being returned to the county clerk by the judges of election.4 before being refilled. Gettwerth v. Teutonia Ins. Co., 29 La. An. 30 (1877). The time provided by statute, in which a jury shall be returned by the sheriff, is directory and not mandatory. Mowry v. Starbuck. 4 Cal 274. Under Iowa Statute, 1860, the jury year commences January 1st, instead of July 1st. State v. Schilling, 14 Iowa 455. 1. Ark. Dig. (Garrett), § 3663; Cal. Code Civ. Proc., § 204; Gen. Laws Cal. 1877, § 1462; Bush Dig. Fla., ch. 104, § 3; Code Ga. 1873, § 3907; R. S. III. 1880, ch. 78, § 1; Gen. Stat. Kan. 1868, P. 534; Stat. Minn. at L. 1873, p. 221, §23; R. C. Miss. 1880, § 1681; G. S. Neb. 1873, p. 642, § 658; Gen. Laws New Mexico, 1880, ch. 68, § 1; Bright Purd. Dig. (Pa.), "Juries," pl. 2. In Alabama (Code Ala. 1876, § 4733), the board is composed of the sheriff, judge of probate and clerk of circuit court; in Arizona (L. Ariz., ch. 47. § 13), the chairman of the board of county supervisors, the probate judge and clerk of eircuit court; in Nevada (L Nev. 1873, § 1052), the county clerk and district judge; in Indiana (2 Ind. Rev. 1876, p. 29, § 1), the treasurer, auditor and recorder of the county; in Utah, by the clerk of the district and judge of the probate court (L. Utah 1876, p. 55); in Louisiana (R. S. La. 1877, § 2127), by the sheriff, parish judge and clerk of the district court, together with two qualified electors. See for classifications, Thompson & Merriam on Juries; Proffatt on Jury Trial, ch. II. In others by mixed boards of commissioners and other county officers. In Georgia (Code Ga. 1873, § 3907), by the ordinary of the county, with the clerk of the superior court and three commissioners appointed by the court; in South Carolina (R. S. S. Car. 1873, p. 518, § 1), by the chairman of the board of county commissioners, the county auditor and a jury commissioner appointed by the governor; in Pennsylvania, by the district judge and two commissioners who are elected (Purd. Dig., "Juries," pl. 2); in New Mexico, by the judges of the probate and district court, together with three commissioners appointed by the latter (Gen. Laws New Mexico, 1880, ch. 68, § 1). 2. G. L. Ky. 1879, P. 573, § 4; R. S. Tex. 1879, art. 3030. 3. In New Hampshire the selectmen, in Vermont the town board, in Rhode Island the town council, annually make a list. See Gen. Stat. N. H., ch. 194, § 1; G. S. Vt., tit. 9, ch. 15, § 89; G. S. R I. (1872), p. 432. While in most of the New England States, at a meeting of the town. the lists may be corrected by striking off names, in Massachusetts they may be added or struck off. See G. S. Mass. 1860, ch. 132, § 6. Page v. Inhabitants of Danvers, 7 Metc. (Mass.) 326. In Maine the selection is made triennially by the municipal officers, treasurer and clerk of the town; Rev. Stat. 1871) ch. 106, §§ 1, 2. In N. w York by the supervisor, town clerk and assessors, N. Y. Code Rev. Jur., § 1035; in Kansas by the trustee of the township and mayor of the city; L. Kan.. 1879, § 2693; in Wisconsin by the supervisors of towns, trustees of villages and aldermen of cities, R. S. Wis. 1878, § 2526; in Michigan by the assessors and township clerk, and assessor and alderman of city wards; R. S. Mich. 1871, $59 77. 4. In Iowa, before the election, the In the remaining States, Delaware, Maryland, Missouri, Oregon, Tennessee, Virginia and West Virginia, the selection is made by the county courts. The number of names to be selected is prescribed by statutes, or is left by statute to the discretion of the court.I c. MODE. In the United States courts the mode of selecting juries has been prescribed by a recent statute. The act of 18792 enacts that "all such juries, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well known member of the principal political party in the district in which the court is held, opposed to that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein." By the same act the mode of designation practiced by the higher State courts may be used "so far as practicable by the courts of the United States or the officers thereof." 3 In using the mode of selection of the State, the federal courts are not bound to literal conformity, either as regards the persons by whom the selection is to be made, or the number selected or time of the selection.4 Provisions of statutes for the preparation of the jury lists are generally held to be directory only, and not mandatory.5 But sheriff notifies the election judges of the quota of jurors apportioned to each election precinct by the county auditor on the basis of the last election. The election judges select, and return the list with the election returns. Miller's R. C. Iowa. ISSO, § 234. In Ohio, the trustees of the township and the councilmen of the ward deliver the lists to the election judges, who return them to the clerk of the court. R. S. Ohio, 1880, § 164. See Thompson and Merriam on Juries, § 45. The Nevada jury law of 1875 is unconstitutional and void, leaving the sections of the law of 1861, which it purported to repeal, in force. State v. McClear, 11 Nev. 39; State v. Johnson, II Nev. 148. 1. Kell v. Brillinger, 84 Pa. St. 276 (act (Pa.) March 18th, 1874.) See also preceding citations of statutes. 2. Act June 30th, 1879, § 2; Laws U. S. 1829 (Sess. I), ch. 52; 21 Stat. at Large 43. 3. R. S., 800; 5 Stat. at Large 394, not repealed by the act of 1879. "They (jurors in the U. S. court) shall be designated by ballot, lot or otherwise, according to the mode of forming such juries then practiced in such state court, as far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may by rule or order conform the designation and empanelling of juries, in substance, to the laws and usages relating to jurors in the State courts from time to time in force in such State." The practice of the State courts must be expressly adopted by rule or order. Thompson & Merriam on Juries, § 50; citing Alston v. Manning, Chase's Dec. 460. 4. Thompson & Merriam on Juries, § 52; citing U. S. v. Tallman, 10 Blatchf. (U. S.) 21. See, however, U. S. v. Woodruff, 4 McLean (U. S.)_105. 5. See OBJECTIONS infra. State requirements as to the officers by whom the selection is to be made are strictly construed.1 2. Drawing of the Panel. The provisions as to the drawing of the panel from the jury box (or wheel) are almost identical in the States outside of New England. Statutory provisions regu late all the details. The essentials, after the names have been copied from the list on separate slips by the proper officer, folded and placed in the jury box (or wheel) are: a. THE TIME OF DRAWING, which is usually specified as a certain number of days before the commencement of the term at which the jurors are required to attend.2 b. THE OFFICERS, who are either to draw the panel or attend the drawing. In New York the sheriff and county judge attend the v. Haywood, 73 N. C. 437 (1875). In the absence of any showing of wrong motive in the selection of jurors, an informality, as that one or two were not on the list furnished the marshal by the jury commissioner, is no ground for a reversal. State v. Breen, 59 Mo. 413 (1875). The omission to record the certificate to the list does not constitute an irregularity. Rosch v. State, 15 Fla. 591 (1876); Carter v. State, 56 Ga. 463 (1876). Contra, Poulson v. Union Bank, 40 N. J. L. 563, as to the law of 1876. The time held to be directory. Mowry v. Starbuck, 4 Cal. 274; Kell v. Brillinger, 84 Pa. St. 276 (1877). Under the Pennsylvania Stat. 1834, § 90, requiring that the sheriff shall cause the jury wheel "to be locked and secured by sealing wax, and thereon the said sheriff and jury commissioners shall impress distinctly their respective seals," an array drawn from a wheel sealed with but one seal should be set aside and the indictment quashed. Brown 7. Conn, 73 Pa. St. 321 (1873). See in general, State v. Folke, 1 La. An. 744; Trimble v. State, 2 Greene (Iowa) 404; Curley v. Com., 84 Pa. St. 151; Brown v. State, 9 Neb. 157; Clark v. Saline Co. Commissioners, 9 Neb. 516. 1. The jury commissioners cannot delegate the duty to any other person. Their mere approval of a selection made by someone else can impart no validity to the selection. State v. Newhouse, 29 La. An. S22 (1877). In Maryland, the approval and adoption by the "four judges" appointed to "meet" and "select" the names, without any "meeting," was held not to be a substantial compliance with the law in Clare v. State, 30 Md. 163 (1868). In New Jersey the selection is committed to the sheriff alone. State v. Johnson, I N. J. L. (Coxe) 219. See also U. S. v. Woodruff, 4 McLean, 105, as to selection by the marshal in the U. S. circuit court. A jury commissioner who has accepted another office and qualified, is constitutionally disqualified as a jury commissioner. State v. Newhouse, 29 La. An. 824 (1871). So a list prepared by the chairman of a retiring board of county commissioners. State v. Bryce, 11 Š. Car. 342. Contra, State v. McJunkin, 7 S. Čar. 21 (1875), where it is held a commissioner of jurors holds over until his successor is appointed and has qualified. See Veramendi . Hutchins, 56 Tex. 414 (G. L. 1876, p. 76, § 4). In Massachusetts, a list was prepared and laid before a town by its selectmen. The town voted that said list be not accepted, and also voted to elect a list by nomination. Thereupon several persons, part of whom were on the list prepared by the selectmen and part not on that list were nominated and declared chosen. Held, that the persons were legally selected as jurors. Page 7. Inhabitants of Danvers, 7 Metc. (Mass.) 326. 2. In New York, not less than fourteen nor more than twenty days. N. Y. Code, Rem. Jus., § 1042. În Pennsylvania, thirty days. Bright Purd. Dig. "Juries," pl. 26. In Louisiana, thirty. La. Rev. Stat. (1870), § 2127. In Michigan, fourteen. Mich. Laws (1871), 5985. In Illinois, twenty. Ill. Rev. Stat. (1874), ch. 78, § 8. See Cal. Code of Proced., §§ 214, 219; Fla. Bush's Dig. (1872), p. 439. 1 drawing of names by the county clerk; similarly in California 2 and Louisiana.3 In Pennsylvania, the sheriff and commissioners draw the names. In New Jersey,5 the sheriff alone performs the whole duty of selecting, copying on slips and placing in the box, from which the names are drawn in open court. In the New England States the drawing is generally performed by the town clerk and selectmen (on whom, in towns, the venire is served). In Maine, the drawing must take place before the town meeting convened for that purpose. Penalties for failing to make a drawing are generally part of the statutory provisions. While acts in regard to the selecting and drawing of jurors are for the most part directory, and not mandatory, yet provisions in regard to the officers entrusted with the drawing of the panel are strictly construed.8 C. THE NUMBER DRAWN, which is usually, as in New York,ɔ thirty-six, and any additional number ordered by the court according to law. In Pennsylvania 10 it is not less than thirty-six, nor more than sixty for counties outside of Philadelphia county; in Louisiana,11 it is forty-eight; in Illinois,12 thirty; in Michigan,13 twenty-four. For Mississippi, see Stevens v. Richer, 2 Miss. (1 How.) 522. See also Dayton v. State, 19 Ohio St. 584. 1. N. Y. Code, Rem. Jus., § 1042. 219. 3. See La. Rev. Stat. (1870), § 2127. 4. Bright Purd. Dig. (Pa.), "Juries,' subdiv. "Venire." 5. Rev. N. J. 1877, p. 533, § 13. 6. G. S. Mass. 1860, p. 680, §§ 10-16; G. S. N. H., ch. 194, § 10; G. S. Conn. 1875, tit. 19, ch. 10, § 6; G. S. Vt. 1862, ch. 37, § 5; R. S. Me. 1871, ch. 106, § 9; G. S. R. I. 1872, p. 452, § 15. In cities the venires for jurors are served upon the mayor and aldermen. G. S. Mass. 1860, ch. 132, § 22. also the statutes just cited. See 7. Code Ala. 1876, § 4762; Bush Dig. Fla., ch. 104, § 29; R. S. Del. 1874, ch. 109, § 23; Miller's Code Iowa, ISSO, § 243; G. S. Mass. 1860, ch. 132, § 37; R. S. Me. 1871, ch. 106, § 16; G. S. N. H., ch. 194, § 17; Code Va. 1873, p. 1062, § 22; G. S. Vt., p. 332, § 9; R. S. W. Va. 1879, ch. 109, § 26. 8. Under the Louisiana act, 1877, No. 44, no jury can be legally drawn without the presence of the clerk as one of the jury commission, he being the only commissioned officer of the five members, and the only member elected by the people; and this though the law prescribes that "three members of the commission shall be a sufficient num ber." State v. Conway, 35 La. An. 350. In case of the inability of the sheriff to act, by reason of sickness, the court has no power to direct a coroner to empanel a jury in a criminal case. State v. Monk, 3 Ala. 415. But see contra, Hunt v. Mayo, 27 La. An. 197 where the assistance of the recorder, in addition to the prescribed officers, did not vitiate the panel. So of a deputy sheriff. State v. Bohan, 19 Kan. 28 (1877). See also Mayo v. People, 69 Ill. 523 (1873). 9. N. Y. Code, Rem. Jus., § 1042. The additional jurors whom by La. acts, 1877, p. 57, § 7, the judge is empowered to have drawn, are a part of the regular panel, and their names should be placed in the jury box for acceptance or rejection along with those drawn before the meeting of the court. State v. Brooks, 36 La. An. 334. If, between the time of selecting the panel and beginning the trial, the law be changed so as to require a larger panel-as here, twenty-four instead of eighteen jurors-a litigant has the right to demand the larger panel. Kennon v. Gilmer, 4 Mont. 433. When the jury box contains less than the maximum number of names, it be d. THE DRAWING PROPER.-The names, having been thoroughly intermixed,1 are drawn by lot from the box (or wheel),2 in some States in open court;3 and upon public notice.4 A list of the names drawn, showing the place of residence, must be made, certified by the attending officers and delivered to the sheriff of the county and to the clerk of the proper court, to be set up for the for the purpose of inspection.5 The mode and manner of drawing the array of jurors prescribed comes the duty of the clerk to draw the names which are in the box and write them on two slips of paper, giving one to the attorney for the State and the other to the defendant or his attorney. If there are more than twelve names on the lists, the parties will select the jury therefrom; if there are less than twelve, the court will order a sufficient number of talesmen to complete the panel. This rule applies to the organization of juries in felonies less than capital. Ned Davis 7. The State, 9 Tex. App. 634. If the clerk draws from the box a less number of names than the maximum, it will be presumed, in the absence of anything to show the contrary, that he drew all that were remaining in the box, and could not furnish a maximum. Davis v. State, 9 Tex App. 634. It is of no interest to the prisoner to know, and he has no right to enquire, how many names remain in the box after his panel has been supplied, for such names could not be drawn in his trial in any issue. Territory v. Beed, 5 Mont. 92. 1. Bright Purd. Dig. (Pa.), "Juries," pl. 48; Pub. Sts. (Mass.), ch. 170, § 31; Com. v. Bacon, 135 Mass. 521. 2. Bright Purd. Dig. (Pa.), "Juries," pl. 48, §§ 7267 to 7275, inclusive, of the Revised Statutes (of Ohio), are repealed by the act of March 25th, 1881 (78 O. L. 95), in respect to empanelling juries in capital cases, or affected otherwise than in substituting the wheel, therein provided for, in place of the box, from which the names of electors shall be drawn for jury service. McHugh v. State, 38 Ohio 153. In Massachusetts, a revolving barrel is used. Pub. Stats., ch. 170, § 31. The Mi higan jury act of 1877 (act 125 of 1877) requires the names of jurors to be drawn in turn from separate parcels containing names from each precinct in the county. People v. Hall, 48 Mich. 482. 3. In trials for misdemeanors, the jury should be drawn anew in each case, in the presence of the defendant and in open court, from the whole number of those serving as jurors. [HASKELL, J., dissenting.] State v. Cardoza, 11 S. Car. 195. See State v. Smalls, II S. Car. 262. A jury drawn while the court was in session, in the presence of the court and its officers, must be held to have been drawn in open court, whether it was done in the room where the court usually sits or in any other room of the court house. State v. Millain, 3 Nev. 409 See Rowell v. Boston & Maine R. Co., 58 N. H. 514; Convers v. Grand Rapids etc. R. Co., 18 Mich. 459. 4. Under the act of congress requiring the judge of the district court of Utah Territory to give public notice of the drawing of a jury, it is not necessary to give notice thereof by publication in a newspaper; any public notice is sufficient. U. S. v. Reynolds, 1 Utah T. 319 (1876). 5. In New York, any person applying to the county clerk or sheriff (and paying the fee) can have a copy. N. Y. Code Rem. Jus., § 1049. In Pennsylvania (Bright. Purd. Dig., "Juries," pl. 53), lists must be set up in the sheriff's office and the prothonotary's office respectively for the inspection of all persons concerned. In Nevada the list is filed in the clerk's office for inspection by officers and attorneys of the court. Comp. L. Nev. 1873, § 1054. See Comp. L. Ariz., ch. 47, § 27; Cal. Code Civ. Proc., § 221; Comp. L. Kan. 1879, § 2978; Comp. L. Mich. 1871, § 5992, where a copy may be had upon application. In Louisi na, the list must be filed in the clerk's office as soon as completed, subject to the inspection of any person who may desire to examine, in order that any defects or informalities which may have occurred in the formation, drawing or summoning of jurors, or any other defect whatsoever in the construction of the jury, shall be made on |