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Statutes in some States provide for the issuing of the special venire in cases where death may be the punishment, as a matter of right.1

A strict compliance with the

under for all criminal trials of the term. Fanning v. People, 10 Ill. App. 70.

See People v. Jones, 24 Mich. 215; State v. McCartey, 17 Minn. 76, as to what constitutes an entire absence of petit jurors within Minn. G. S., ch. 64, § 17.

1. Act of Assembly (Va.) 1877-78, §§ 3 and 4, the provisions of which are imperative and essential. In any felony case where, from those summoned and in attendance, a sufficient number of jurors cannot be had, a new venire facias must be directed, requiring to be summoned from the bystanders, or from a list to be furnished by the court, as many persons as may be deemed necessary. Omission to direct a new venire facias, or of any statutory essential apparent on the record, is error and may be taken advantage of after the verdict by motion in arrest of judgment, failure of accused to make the objection before jury sworn being no waiver. Hall v. Com., 8o Va. 555 (1885). After the judge has set aside in one case a whole venire drawn for that term, he cannot afterward during that term, in another case, hold such a venire to be good. State v. Revello, 31 La. An. 387; State v. Smith, 31 La. An. 406.

Under the Indiana acts, Reg. Sess., p. 103 (Stat. March 7th, 1873), the circuit court is empowered, whenever its business requires it, to order the empanelling of a special jury for the trial of any cause. But this act does not authorize the court to empa nel such jury before the day, to which day the regular panel has been summoned, but was intended to authorize a special jury when the regular panel is engaged, or after it has been discharged. Where a person indicted for grand larceny expressed himself ready for trial on the fifth day of the term, and none of the jury were present, having been summoned to attend on the seventh day, it was error for the court to order a special jury to be empanelled over the defendant's objection. Wilson v. State, 42 Ind. 224. See Weaver v. State, 19 Tex. App. 547. No special venire is needed for a struck jury. McDermott v. Hoffman, 70 Pa. Št. 31. Nor upon a plea of riens

statutory provisions is generally

per discent. Roosevelt v. Fulton, 6 Cow. (N. Y.) 48.

But the jurors stood aside at the instance of the prosecution, when the original panel has been exhausted without forming a jury, must be brought forward before resorting to a special venire. State v. Washington, 90 N. Car. 664. See Texas Code of Criminal Procedure, arts. 613, 614; Charles v. State, 13 Tex. 658. See also Shelton v'. State, 73 Ala. 5; Kimbrough v. State, 62 Ala. 248.

Under the Missouri Rev. Statutes, §§ 2802, 3894, where a motion for a special venire is made three days before that on which a cause is set for hearing, the trial court has no discretion to refuse it, and it would be error to do so.

But where the motion is not made until the day of trial, the court may, in its discretion, refuse it, and its action cannot be reviewed on appeal, and the day the parties announce themselves ready for trial and a jury is ordered summoned is the day of trial. State v. Leabo, 89 Mo. 247. See also Samuels v. State, 3 Mo. 68; State v. Jones, 61 Mo. 232.

Under the Alabama Alabama Sess. Acts, 1884-5, p. 181, when two or more capital cases are set for trial on the same day, but one special venire is authorized and provided for all. Chamblees v. State, 78 Ala. 466.

Officer.-The fact that a special venire facias in a capital case was served by a person not having the writ in his possession, and having no written appointment as a deputy sheriff, is not a good ground for a motion to quash the return on the writ, if it appears that the writ was executed by a person professing to act for the sheriff. Gillum v. State, 62 Miss. 547. But when the panel of drawn jurors is exhausted, and the court is about to issue a special venire, it should not, of its own motion, and against the objections of the defendant, examine the sheriff as to his bias, and if it finds him biased. direct the coroner to serve the venire. People v. Welch, 49 Cal. 177 (1874). Section 3894 of the Missouri Rev. Stat. provides, as construed in State v. Leabo, 89 Mo. 247, that the trial court is not bound to take the affidavit of a party

required in the execution of a special writ or order of venire facias.1

4. Talesmen.-The only method known to the common law to remedy a default of jurors summoned was to select tales de circumstantibus (such of the bystanders as were competent) sufficient in number to make up the jury. This method still prevails in most jurisdictions, though not a few statutes forbid bystanders to be summoned.3 But the courts have been almost uniformly reluctant in relinquishing this method in construing such statutes.4 Unless prohibited by statute, it is always held to exist.5

that the sheriff is prejudiced against him as conclusive, but it has some discretion in the matter, and unless it appears that it has abused its discretion its action will not be reviewed on appeal.

Qualification.-There is often a difference in the requirements of jurors summoned on a special venire and other jurors.

By the North Carolina Code, § 1738, a juror summoned on a special venire is qualified to serve, if he be a freeholder only. But tales jurors and those of the original panel are required in addition to have paid their taxes (§ 1722). State 7. Watson, 86 N. Car. 624.

A juror summoned on a special venire is not rendered incompetent because he has served on the jury in the same court within two years. Only tales jurors come within the proviso of § 1733 of the code (N. Car.) State v. Whitfield, 92 N. Car. S31. See State 7. Whitford, 12 Ired. (N. Car.) L. 99.

1. Article 614 of the Texas Code of Crim. Proc. provides that the "officer executing the writ shall return the same promptly on or before the time it is made returnable. The return shall state the names of those who have been summoned, and if any of those whose names are upon the list have not been summoned, the return shall state the diligence that has been used to summon them, and the cause of the failure to summon them." Article 640 of the Penal Code (Texas), directing that the jurors' names be called "in the order in which they appear on the list furnished the defendant," applies in the case of a special venire, and must be complied with, notwithstanding objection the exposure of the list. Hall v. Com., So Va. 555, 1885; Clark v. State, 18 Tex. App. 350.

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365.

3. In Arizona, California, Iowa, Nevada, Ohio and Utah, bystanders may not be summoned under the following statutes: Comp. L. Arizona, ch. 47, § 30; Cal. Code Civ. Proc., § 227; Miller's R. C. Iowa, 1880, § 2775; Comp. L. Nev. 1873, § 1222; R. S. Ohio, 1880, § 5173; Comp. L. Utah, 1876, § 1385.

4. But in a recent case in Iowa (Buford v. McGetchie, 60 Iowa 298 (1882), it was held, that if the defendants were not satisfied with filling up the jury with talesmen, they should have challenged the talesmen as they were called, and thus compelled the additional drawing provided by section 232 of the code, if that can be required, and that a challenge to the panel was properly overruled.

5. In Alabama, by § 4874 of the code, it is the right of the defendant to have a jury selected from all the persons summoned as special and regular jurors, who are in attendance and competent only subject to any contingency and necessity that may arise from the operation of the statutory provision.

But where the same persons are drawn and summoned for the trial of two defendants indicted for separate capital felonies, to be tried on the same day, should one or more of them be engaged in the consideration of the case But it is not required that every required that every of one of the accused, while a jury is

Little agreement can be found in the decisions as to the emergency in which tales jurors may be summoned, except in this, that none can be called until the regular panel is exhausted.1 panel is exhausted.1 Where the

being selected for the trial of the other, the necessity in such case is created by the act of the court, and is in violation of the requirements of the code. Evans v. State, So Ala. 4.

In Colorado, under G. L., §§ 812 and 1479, after the regular panel has been exhausted, the court may order a tales, but the prisoner has the right to object to the depletion of the panel on insufficient grounds. Stratton v. People, 5 Colo. 276.

In Florida, under the Fla. Laws, ch. 1628, § 21, the sheriff may, after the regular panel has been exhausted, call persons, one at a time, from the bystanders, and not furnish a full list of the bystanders. Green v. State, 17 Fla. 669.

The Illinois act of 1872, repealing three prior acts concerning the selecting and empanelling of jurors, but not purporting to repeal Ill. Crim. Code, § 178, providing for tales returnable instanter, nor any act inconsistent therewith, have such provisions still in force. Gropp v. People, 67 Ill. 154 (1873).

For construction of Indiana statute (2 Gav. & H. 40S), see Rogers v. State, 33 Ind. 543.

For Kansas see Comp. L. of 1879, ch. 54, §§ 23. 26; Trembly v. State, 20 Kan. 116; State v. Skinner, 34 Kan. 256 (1885).

The Louisiana acts of ISSO, No. 98, did not repeal acts 1877, No. 138, which provides for the drawing of tales jurors in criminal cases in the parish of Orleans under certain circumstances. See State v. Alphono, 34 La. An. 9.

Louisiana Acts 1877, No. 44 give the district judge discretionary power to order the drawing of additional jurors. State v. West, 35 La. An. 28; State v. Revello, 35 La. An. 302.

In New York the act (Laws 1861, ch. 210) was held to be constitutional under the State and U. S. constitutions in Gardiner v. People, 6 Park. (N. Y.) C. R. 155, 193. See Bennett v. Matthews, 40 How. (N. Y.) Pr. 428 (1870).

Under the South Carolina jury act of 1877 the circuit court cannot issue a venire for talesmen. State v. Stephens, II S. Car. 319.

Texas, on Paschal's Tex. Dig., arts. 3021, 3022, see Johnson v. State,

4 Tex. App. 268; Roberts v. State, 5 Tex. App. 141; Fields v. State, 5 Tex. App. 616; Harris v. State, 6 Tex. App. 97; Gardenhire v. State, 6 Tex. App. 147.

On Texas act of 1876, § 23, regulating the summoning of talesmen, see Baker v. State, 4 Tex. App. 223. The prohibition there enacted of the sum moning of tales jurors within the court house yard may be regarded as merely directory, if the accused is not shown to have been prejudiced been prejudiced thereby. Matthews v. State, 6 Tex. App. 23.

The "yard" is there held not to apply to an unenclosed space around the court house.

For Mississippi, Barnes v. State, 60 Miss. 355.

For Pennsylvania, see Williams v. Com., 91 Pa. St. 493.

In Washington Territory, where the statute requires the summoning of jurors from the county where there are not enough in attendance, no irregularity appears from the fact that they are summoned from the bystanders. Yellow Jim v. Territory, I Wash. 63.

In the U. S. courts, the provisions of the U. S. Rev. Stat. and of the act of 1879, must be construed together, and where so construed they authorize the summoning from bystanders, during any current term of talesmen for the transaction of the business of the court. U. S. v. Munford, 16 Fed. Rep. 164.

1. In the State v. Ross, 30 La. An. pt. 2, 1154, a verdict of murder was set aside, the absent member of the regular panel not having been called at the court house door before the summoning of talesmen to complete the jury, and where, while proceeding with the list of talesmen, a jury previously reports and is discharged, the judge must resume the call under the regular venire before continuing to form a jury from talesmen. State v. Cranch, 38 La. An. 480; State v. Atkinson, 29 La. An. 543 (1877); Stratton v. People, 5 Colo. 276; Rogers v. State, 33 Ind. 543; O'Connor v. State, 9 Fla. 215. Where the jurors summoned do not appear. U. S. v. Reynolds, 1 Utah T. 226. See also State v. Benton, 2 Dev. & B. (N. Car.) L. 196.

regular jury or part of the regular panel are engaged in another trial at the same time, the decisions are equally for and against the summoning of bystanders.1

It is an open question whether a jury can be formed entirely of bystanders, without a single member being called. It might be if such member were successfully challenged after being called.2 By some statutes the necessity must arise from the operation of the statute.3 And talesmen can only be summoned for a single trial, not for a circuit.4

In general, talesmen are called strictly as additional jurors, and not to form a new panel, though a special venire is often drawn from bystanders as well as "from the body of the county.” 5 The practice of summoning jurors is variously regulated by statute.6

1. In Kimbrough v. State, 62 Ala. 248, the fact that one or more of the persons on the venire served on a prisoner charged with a capital offence, were on the regular juries for the week and could not be obtained gave the prisoner no right to delay the empanelling of the jury for his own trial, until such persons might be discharged. So Bradley v. Bradley, 45 Ind. 67, and Barnes v. State, 60 Miss. 355. But in Thuston v. State, 18 Tex. App. 26, it was decided otherwise. In the selection of jurors from a special venire, all the veniremen were in court, but five were jurors in another felony case. The court over objection ordered the sheriff to summon twenty talesmen. It was held erroneous. The case which the five veniremen were already trying being a felony case the court should have postponed the empanelling of the jury in the present case until the five veniremen were legally discharged from the other case. And Evans v. State, So Ala. 4 (1885), is to the same effect.

2. In Barnes v. State, 60 Miss. 355 (1882) the court said: "It is said that one member of a regular panel at least must be called, although challenging him will not defeat the jury, but it seems more reasonable to hold that the power to form a jury is inherent and unaffected by the absence of all the regular venire."

3. See Evans v. State, 80 Ala. 4 (1885), supra, where the same persons being drawn for separate capital trials on the same was held no such necessity under code (Ala.), § 4874.

See also State v. Alphonso, 34 La. An. 9, as to Louisiana acts 1880, No. 98 and Louisiana acts 1877, No. 138.

4. Shields v. Niagara etc. Bank, 5

Thomp. & C. (N. Y.) 585; 3 Hun (N. Y.) 477.

5. In the trial of an indictment of a sheriff for perjury in taking the oath of office prescribed by art. 7, § 3 of the Pennsylvania constitution, the court sustained a challenge to the array of jurors made by the Commonwealth and ordered a venire for twenty-four traverse jurors to be immediately summoned from the bystanders, or from the body of the county at large. The coroner being sick, elisors were appointed who summoned the jurors, and the court proceeded with the trial. Held to be error. Williams v. Com. 91 Pa. St. 493. See State v. Skinner, 34 Kan. 256; Trembly v. State, 20 Kan. 116; Comp. Laws (Kan.) of 1879, ch. 54, §§ 23, 26.

6. As to the meaning of "bystanders" it was decided in State v. Lamor, 3 Hawks. (N. Car.) 175, that when persons who were not bystanders were called into court this was sufficient summoning, and when they came in they were bystanders and bound to serve. See State v. Brown, 7 Oreg. 186. Where a juror, present as a bystander at the session in a criminal case, immediately after adjournment was summoned on a venire to the county; held, that after adjournment he was not a bystander and was of the body of the county.

In Texas, a bystander cannot be taken from the courthouse yard. Act of 1876, § 23. Baker v. State, 4 Tex. App. 223; Matthews v. State, 6 Tex. App. 23.

The New York Laws, 1861, ch. 210, provide for summoning additional jurors from the town or city where the court is held. Held constitutional. Gardiner v. People, 6 Park. Cr. 155, 193.

The number rests in the discretion of the court.1

As summoning officer, if the sheriff be interested, the coroner may act,2 or the deputy sheriff,3 or other officer provided for by statute.4

The qualifications are sometimes higher in tales jurors than in those of the regular panel, sometimes lower.

5. Challenges. Challenges are first divided into challenges to the array or panel, and challenges to the polls.

a. CHALLENGES TO THE ARRAY.-At common law the only ground was partiality in the sheriff. With the change in the process of organization and with the division of the duties and discretion of selecting names, this ground has generally disappeared; in some States the right of challenge for this cause has been specifically abolished. And generally the title of the summoning or selecting officer is no ground for a challenge to the array.8

Nor is any immaterial departure from the prescribed mode a good ground. But where the statute specifically prescribes the

Under the Michigan Jury act of 1877 (act 125 of 1877), there is provision for ordering talesmen to be drawn from a single township where the emergencies of the term do not leave time for summoning them from the county at large; but a jury drawn three weeks before trial for a particular case of homicide is illegal if taken from only part of the townships in the county and those not adjoining the county seat nor including the locality of the offence. People v. Hall, 48 Mich. 482. See State v. Revello, 35 La. An. 302; State 7. Gallagher, 20 La. An. 46; Patterson 7. State, 48 N. J. L. 38.

As to the mode of summoning, under Florida Laws, ch. 1628, § 21, a full list need not be served. Green v. State, 17 Fla. 669. See State v. Cardoza, 11 S. Car. 195. Compare State v. Smalls, 11 S. Car. 262; Bennett v. Matthews, 40 How. (N. Y.) Pr. 428. The sheriff may procure persons in anticipation of a demand for talesmen. State v. Allen, 47 Conn. 121.

1. People v. Colt, 3 Hill (N. Y.) 432; 2 (N. Y.) Rev. Stats. 733.

2. People v. Tweed, 50 How. (N. Y.)

Pr. 286.

3. Hulse v. State, 35 Ohio St. 421. 4. 76 Ohio L. 54.

5. In North Carolina, a tales juror must have the additional qualification of being a freeholder. State v. Whitley, 88 N. Car. 691. But in Louisiana, he need not be a registered voter. State 2. Courtney, 28 La. An. 789. A talesman is not incompetent because on the grand jury list. McLain v. State, 71

Ga. 279. See Ladd v. Prentice, 14 Conn. 109. If he has served as a talesman upon a jury in the same court at a previous term within a year, he may be challenged under Ind. Stat. 1873, March 8th, 1884. Christie v. State, 44 Ind. 408, It is no objection to a talesman that his name does not appear on the jury list made out by the county commissioners. Lee v. Lee, 71 N. Car. 139. See further Capehart v. Stewart, 80 N. Car. 101. For irregularities see Munshower v. State, 56 Md. 514.

6. BI. Com. III. 359; Co. Litt. 156. 7. Comp. L. Mich. 181, §§ 6013, 6014; N. Y. Code Rem. Jus., §§ 1177, 1178.

8. Palmer v. Charlotte etc R. Co., 3 S. Car. 580. In Cox v. State, 64 Ga. 374, the fact that the jury commissioners are such de facto only, no order of their appointment appearing on the minutes is no cause. See Gott v. Brigham, 45 Mich. 424; State v. Jenkins, 32 Kan. 477 (1884).

9. The failure of a township to return a list, and a return by a second township after the time fixed by law, and after one jury had been drawn from the lists returned by the remaining townships, and the omission of the county clerk, on drawing the jury, to return the names drawn to the proper packages for each township until the whole list for all the townships is exhausted, properly overruled as grounds for a challenge in People v. Coffman, 59 Mich. 1; cf. How. Stat. (Mich.), §§ 7554-67, 7575; Thomas . People, 39 Mich. 311. An omission of the clerk to bring into court the box containing the names of

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