ties: Provided, that persons over sixty years of age, ministers of the gospel, and county or district officials, practicing physicians, undertakers, pharmacists, teachers in public schools, postmasters, and carriers of the United States mail, members of the national guard, and all members of good standing of any regular organized fire department, if they claim their exemption, shall not be compelled to serve as jurors in this state." "

§ 1161. Former list removed when new list selected

"Before placing in the jury box the names selected by the jury commission at any of its meetings, as herein provided, it shall be the duty of the clerk of the district court, or his deputy, and of the county judge, or his clerk, to remove from the respective jury boxes any names remaining therein, and to record the same upon the journal of the respective courts, and to certify to the correctness thereof." 1

§ 1162. Irregularities in drawing

"A substantial compliance with the provisions of this chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause." 2

99 Rev. Laws 1910, § 3698. 1 Rev. Laws 1910, § 3700.

2 Rev. Laws 1910, § 3701.

(1097)

That a venire for special jurors was served by a biased, prejudiced, or incompetent person should be taken advantage of by challenge to the special venire.3

To authorize the quashing of a venire, the defendant must show irregularities in connection therewith which are reasonably calculated to deprive him of a substantial right.*

A challenge to the panel can be founded only on material departure from the forms of law, or an intentional omission to summon one or more jurors, and the burden is on defendant to show that the illegality is such as to have caused material prejudice.

3 Saunders v. State, 111 P. 965, 4 Okl. Cr. 264, Ann. Cas. 1912B, 766. Disallowance of challenge made to the jury panel pursuant to Rev. Laws 1910, § 5848, on account of bias of the summoning officer held error. Koontz v. State, 139 P. 842, 10 Okl. Cr. 553, Ann. Cas. 1916A, 689.

4 January v. State, 16 Okl. Cr. 166, 181 P. 514; Edwards v. State, 127 P. 872, 8 Okl. Cr. 341; Wood v. State, 107 P. 937, 3 Okl. Cr. 553.

A challenge to the array or panel will lie for bias or irregular action of the summoning officer. Harjo v. United States, 1 Okl. Cr. 590, 98 P. 1021, 20 L. R. A. (N. S.) 1013.

See Rev. Laws 1910, s 3701.

On a motion to set aside the jury panel on the ground that the jury commissioners were improperly appointed and the jury improperly drawn, the burden is on the persons attacking the regularity of the proceedings to establish their contention, and, when this is not done, the motion to set aside should be overruled. Munn v. State, 114 P. 272, 5 Okl. Cr. 245.

5 Maddox v. State, 12 Okl. Cr. 462, 158 P. SS3.

A challenge to a petit jury panel can be founded only on a material departure from the law for the drawing and returning of the jury, or intentional misconduct of the sheriff in summoning them, and must show that defendant

A failure to select jurors from all the cities and townships of the county, is not ground for challenge to the array."

That a jury was composed solely of white men is not ground for a challenge to the panel, unless negroes were excluded therefrom solely on account of their race and color."

Remarks of a trial judge to petit jurors at the beginning of the term where the defendant was convicted form no ground of challenge to the entire panel as such challenge can be based only on the grounds stated in the statute.8

Prejudice of individual jurors against the accused is no ground for challenge to the panel, but should be raised by challenging for cause the prejudiced jurors individually."

After learning that several petit jurors are not eligible, the court may purge the jury without sustaining a challenge to the array.10 Where any portion of the jurors are disqualified by having served the statutory period, and not having been held over by proper order of court for six days, and the others in the panel are not affected by the disqualification, this question should be raised by a challenge for cause, and when this is not done the objection is waived.11

has suffered some material prejudice. Wadsworth v. State, 9 Okl. Cr. 84, 130 P. 808.

6 State v. Schmidt, 87 P. 742, 74 Kan. 627; Same v. Thorp, Id.; Same v. Thomas, Id.

McIntosh v. State, 128 P. 735, 8 Okl. Cr. 469.

Where a negro under oath challenges the panel, on the ground that the commissioners and sheriff had excluded from the jury all persons of African descent on account of their race, the court should hear evidence, and, if negroes were intentionally excluded, the challenge should be sustained. MeIntosh v. State, 128 P. 735, 8 Okl. Cr. 469.

Where a negro is charged with crime, and challenges the panel on the ground that the commissioners and sheriff excluded from the jury all negroes on account of their race and color, and offers evidence to sustain the challenge, if the court is of the opinion that as a matter of fact negroes were intentionally excluded on the ground charged, the motion should be sustained. Smith v. State, 111 P. 960, 4 Okl. Cr. 328, 140 Am. St. Rep. 688.

Pate v. State, 15 Okl. Cr. 90, 175 P. 122; Rev. Laws 1910, § 5842.

Remer v. State, 109 P. 247, 3 Okl. Cr. 706.

10 Where 26 persons are summoned as peiit jurors, and it is affirmatively shown on the part of the defendant that 2 or 3 of the panel are not eligible, the court can purge the jury without sustaining a challenge to the array. State v. Whisner, 10 P. 852, 35 Kan. 271.

Stuard v. State, 116 P. 204, 6 Okl. Cr. 94, denying rehearing 114 P. 1133, 5 Okl. Cr. 686.

After a jury has been selected, it is too late to challenge the array and panel.12

It is not error for the trial court to refuse to hear evidence offered in support of a challenge to the panel of jurors, where the challenge states no facts which, if proved, would justify the court in sustaining it.13

§ 1164. Statutory grounds for challenge

"If there shall be impaneled, for the trial of any cause, any petit juror, who shall have been convicted of any crime which by law renders him disqualified to serve on a jury; or who has been arbitrator on either side, relating to the same controversy; or who has an interest in the cause; or who has an action pending between him and either party; or who has formerly been a juror in the same cause; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness; or who is of kin to either party; or any person who shall have served once already on a jury, as a talesman on the trial of any cause, in the same court during the term, he may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the court; and any petit juror who shall be returned upon the trial of any of the causes hereinbefore specified, against whom no principal cause of challenge can be alleged, may nevertheless, be challenged on suspicion of prejudice against, or partiality for either party, or for want of competent knowledge of the English language, or any other cause that may render him, at the time, an unsuitable

12 Beatty v. State, 113 P. 237, 5 Okl. Cr. 105.

A challenge to the array if not made before the parties have exhausted their peremptory challenges and challenges for cause is not made in time. State v. Everson, 64 P., 1034, 63 Kan. 66.

13 Remer v. State, 109 P. 247, 3 Okl. Cr. 706.

While the trial court, when a challenge to a petit jury panel is presented and properly denied, must try the issue of fact, it is not error for the court to overrule such challenge, where, if true, it fails to state facts sufficient to justify the discharge of the jury. Wood v. State, 107 P. 937, 3 Okl. Cr. 553.

A challenge to a panel because of a material departure from prescribed forms as to selection, drawing, and return of panel, and because panel was not a fair, impartial panel, to defendant's material prejudice, was properly denied under Rev. Laws 1910, § 5843, because not specifying facts showing how panel was not summoned as prescribed by law. Wilson v. State (Okl. Cr. App.) 183 P. 613.

juror; but a resident and taxpayer of the state or any municipality therein shall not be thereby disqualified in actions in which such municipality is a party. The validity of all challenges shall be determined by the court." 14

§ 1165. Qualifications in general

Parties to an action have no vested right in any particular juror, and all that either can insist upon is that jurors actually selected shall be competent, disinterested, and selected according to law.15 The competency of a juror is a question for the court, but its discretion is not intended to deprive the defendant of his right to a trial by an impartial jury, nor does the statute change the essential qualifications of jurors.10

16

A challenge for cause is properly overruled, where the court is satisfied that the juror is competent and he states that he will try the case on the evidence.17

In the absence of an express statute making a juror who had been convicted of felony in another state incompetent, such conviction and sentence can have no effect by disqualification beyond the limits of the state in which the judgment was rendered.18

At common law, the fact that a juror was an alien or had been convicted of crime was a cause of challenge, and there was no distinction between a person convicted of a felony and an alien.19

The fact that a juror was in the court room and heard the evi

14 Rev. Laws 1910, § 4997.

15 Bank of Buffalo v. Venn (Okl.) 171 P. 450.

16 Temple v. State, 15 Okl. Cr. 176, 175 P. 733; State v. Molz, 139 P. 376, 91 Kan. 901.

Under Williams' Const. § 14, every citizen accused of crime is entitled to have justice administered by an impartial jury, without sale, denial, delay, or prejudice. Tegeler v. State, 9 Okl. Cr. 138, 130 P. 1164. Comp. Laws 1909, § 6814, relating to challenges of jurors for bias, must be construed in connection with the constitutional guaranties of trial by an impartial jury without sale, denial, delay, or prejudice. Id.

Where trial court excuses juror because of bias in favor of one defendant and his acquaintance with the family of defendant, his action was a matter of discretion, under Rev. Laws 1910, § 5858, subd. 2. Collins v. State, 15 Okl. Cr. 96, 175 P. 124.

17 State v. Compton, 146 P. 1161, 94 Kan. 642.

18 Queenan v. Territory, 71 P. 218, 11 Okl. 261, 61 L. R. A. 324, judgment affirmed 23 S. Ct. 762, 190 U. S. 548, 47 L. Ed. 1175.

19 Queenan v. Territory, 71 P. 218, 11 Okl. 261, 61 L. R. A. 324, judgment affirmed 23 S. Ct. 762, 190 U. S. 548, 47 L. Ed. 1175.