While the jurors of the regular panel of the county court are available, it is not necessary to qualify more than six jurors before challenges are exercised.68

The burden rests upon a party interposing a challenge to a juror for cause to show that the cause exists, and a juror's incompetency does not necessarily appear by proof that he has served within a year next preceding his examination, but it must appear that he has served as a juror within the year next preceding "the selection of jurors for that year."

Each defendant jointly tried on a criminal charge is entitled to challenge peremptorily the number of jurors permitted by statute. in such case, but the number allowed the state remains the same.70

The rule that gives to the prosecution and defendant, each, three peremptory challenges, does not mean that, where two or more. defendants are tried jointly for a misdemeanor, each may challenge three jurors, but that all of the defendants may jointly challenge that number.71

§ 1169. Vacancies filled at once

"After each challenge, the vacancy shall be filled before further challenges are made; and any new juror thus introduced may be challenged for cause as well as peremptorily." 72

§ 1170. Talesmen

"When the requisite number of jurors cannot otherwise be obtained, the sheriff shall select talesmen to supply the deficiency from

68 White v. Oliver, 122 P. 156, 32 Okl, 479. 69 State v. Hamilton, 87 P. 363, 74 Kan. 461. 70 State v. Dreany, 69 P. 182, 65 Kan, 292.

71 Cochran v. United States, 76 P. 672, 14 Okl. 108, judgment affirmed 147 F. 206, 77 C. C. A. 432.

In the Indian Territory, one charged with a felony was entitled to 20 peremptory challenges, and under section 28 of the Schedule of the Oklahoma Constitution, accepting Act Cong. March 4, 1907, c. 2911, § 3, 34 Stat. 1287, amending section 20 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277), and providing that all criminal cases pending in the Indian Territory not transferred to the federal courts shall be proceeded with in the state courts under the laws then in force in the Indian Territory, one tried in a state court for a felony committed in the Indian Territory before statehood is entitled to 20 peremptory challenges, and it is error to restrict him to 5. Harris v. United States, 111 P. 982, 4 Okl. Cr. 317, 31 L. R. A. (N. S.) 820, Ann. Cas. 1912B, 810.

72 Rev. Laws 1910, § 4999.

the bystanders, or the body of the county, as the court may di

The fact that the court, in drawing necessary additional jurors for the trial of a criminal case, limited the names drawn to jurors living within six miles of the court house, in order to save time and expense, was not reversible error, where the defendant did not object thereto and did not exhaust his peremptory challenges.74

The statute exempting from jury duty certain classes of persons, is for the benefit of those included within said classes, and if one summoned as a juror belongs to one of said classes, but fails to claim his exemption, no one is injured by his service on the jury.75 Licensed dentists are exempt from jury service.7

73 Rev. Laws 1910, § 5000.

At any time during the term after the regular panel has been summoned and proves insufficient, the court may direct that the jury may be completed from the talesmen or open venire issued under the statute. Watson v. State, 9 Okl. Cr. 1, 130 P. 816.

It is not prejudicial error, when necessary to secure additional jurors for the trial of a cause which is on call, for the court to order such additional jurors as it thinks proper to be drawn by the clerk and sheriff from the regular jury box of the county. Harding v. State, 16 Okl. Cr. 47, 180 P. 391. Under Rev. Laws 1910, §§ 3692, 3693, it is within trial court's discretion to order an additional drawing of names from jury box, or to direct that an open venire issue to sheriff for number of jurors deemed necessary to be selected from body of county. Allen v. State, 16 Okl. Cr. 136, 180 P. 564; Harding v. State, 16 Okl. Cr. 47, 180 P. 391; Webb v. Shelton, 59 Okl. 224, 158 P. 1128; Remer v. State, 109 P. 247, 3 Okl. Cr. 706.

When there are not enough jurors of the regular panel present in court to constitute a jury, and either party to a case called for trial requests that the necessary additional number be drawn in the manner prescribed by law, it becomes the duty of the judge to cause the drawing to be made, and not to fill the panel with talesmen from among the bystanders. State v. Simons, 60 P. 1052, 61 Kan. 752.

74 State v. Kyne, 62 P. 728, 10 Kan. App. 277.

75 State v. York, 53 P. 838, 7 Kan. App. 291.

Gen. St. 1897, c. 94, § 17, exempting ministers of the gospel, school-district officers, and persons over 60 years of age from jury service, afforded the defendant no right to challenge jurors for cause on those grounds, and such challenges were properly overruled, since the exemption in such cases is a personal privilege. State v. Tulip, 60 P. 659, 9 Kan. App. 454.

76 Sess. Laws 1919, p. 68, § 21.

§ 1172. Oath

"The jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence." 77

Where a party desires to avail himself of irregularity in administering the oath to the jury, the attention of the court should be called to it at the time the oath is taken. A party cannot sit silently by, and take the chances of acquittal, and subsequently, when convicted, make objections to irregularity in the form of the oath."

§ 1173. Number of jurors

Under the Constitution six men constitute a jury in the county court,79 and twelve in district and superior courts.so

77 Rev. Laws 1910, § 5001.

Statements in the record that there came a jury, "who, being sworn well and truly to try the issue joined herein," the trial proceeded, and that “a jury was impaneled and sworn to well and truly try the issues joined herein," are not attempts to give the form of oath administered, and do not show that the jury were not sworn "to well and truly try the matters submitted to them in the case in hearing, and a true verdict give according to the law and the evidence,” as required by Comp. Laws Kan, c. 82, art. 11, § 208, and chapter 80, art. 15, § 274. State v. Baldwin, 12 P. 318, 36 Kan. 1. It is not the duty of the clerk to place on the record the formulary of words in which the oath administered to a jury is couched; and, where he enters the fact that the jury was duly sworn, the presumption is that the oath was correctly administered. Id.

78 State v. Baldwin, 12 P. 318, 36 Kan. 1.

79 Muldrow v. State, 111 P. 656, Okl. Cr. 324.

80 The superior courts created by Act March 6, 1909 (Laws 1909, c. 14, art. 7), are not "county courts," even when exercising jurisdiction concurrent with the county courts, within Const. art. 2, § 19, providing that a jury for the trial of civil and criminal cases in courts of record other than county courts shall consist of 12 men, but in county courts and courts not of record shall consist of 6 men, the term as used referring to the county courts created by Const. art. 7, § 11. Hill v. State, 109 P. 291, 3 Okl. Cr. 686. Under Const. art. 2, § 19, providing that a jury for the trial of civil and criminal cases in

§ 1174. Term of service

"No juror shall be allowed to serve more than two weeks at one term, unless, at the end of such period, he is upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated: Provided, that if the judge is of the opinion that the jury business of a term of court may be concluded within six days, he may require a jury, or a juror, to remain until the termination of said jury service, by entering an order to that effect upon the court journal; and this provision shall apply to both the district and county courts." 81

§ 1175. Selection and summoning

"The general mode of summoning the jury is such as is or may be provided by law." 82

A substantial compliance with the law as to the manner in which jurors are selected and summoned is all that is required; 83 the statutes relating thereto being directory rather than mandatory.84

courts of record other than county courts shall consist of 12 men, but in county courts and courts not of record shall consist of 6 men, a jury for the trial of all civil and criminal cases in the superior courts created by Act March 6, 1909 (Laws 1909, c. 14, art. 7; Snyder's Comp. Laws, §§ 1965-1976), consists of 12 men, and that portion of Snyder's Comp. Laws, § 1970, providing for the trial of misdemeanors in the superior courts before a jury of 6 men, is unconstitutional. Id.

81 Rev. Laws 1910, § 3692. 82 Rev. Laws 1910, § 4996.

83 Wadsworth v. State, 9 Okl. Cr. 84, 130 P. 808.

A substantial compliance with Rev. Laws 1910, § 3690, providing for selection of petit jurors, is sufficient. Brown v. State, 14 Okl. Cr. 609, 174 P. 1102. 84 The laws governing the selection of jurors and the drawing of juries are directory, and a substantial compliance therewith is sufficient. January v. State, 16 Okl. Cr. 166, 181 P. 514; Huntley v. Territory, 54 P. 314, 7 Okl. 60; Sharp v. United States, 76 P., 177, 13 Okl. 522, judgment reversed 138 F. 878, 71 C. C. A. 258; Maddox v. State, 12 Okl. Cr. 462, 158 P. 883.

Notwithstanding Act Cong. Feb. 9, 1906, c. 155, § 1, 34 Stat. 11, provides that, after the names of the petit jurors have been selected, the clerk of the court shall record such list upon the journal of the court and certify the correctness thereof, and that as soon as such list is completed and recorded the clerk shall write each name upon a separate paper and place it in a box, such acts may be performed by the deputy clerk, as they do not require exercise of judicial powers, but are purely ministerial duties. Reed v. Territory, 98 P. 583, 1 Okl. Cr. 481, 129 Am. St. Rep. 861.

The statute providing that no elector's name shall be placed in the jury box by the jury commissioners who has served upon a regular panel within

The courts have power to resort to the common law to supply statutory defects.85

87

It is essential to the fair administration of justice that the jury venire be summoned by an officer not disqualified by bias.80 He should use his best effort to secure men of intelligence and good character, and should act with entire impartiality. He can exercise his discretion in selecting those who are competent to serve, provided he do not exclude competent persons who are negroes solely on account of their race and color.s

88

The mere expression of an opinion by the sheriff as to the guilt or innocence of accused is not ground for quashing a panel summoned by him.89

A duly appointed, qualified, and acting deputy sheriff, having no

the 12 months last past is not mandatory, but directory, and a violation thereof will not vitiate the jury list. Fooshee v. State, 108 P. 554, 3 Okl. Cr. 666. Where a panel of jurors is, in other respects, drawn according to the statutory provisions, the fact that three names which were drawn from the jury box were known to be, at the time of the drawing, nonresidents of the territory, and were for this reason destroyed, and three other names drawn from the box as a part of the same drawing, and in the manner prescribed by law, will not render the jury so drawn an illegal jury. Harmon v. Territory, 60 P. 115, 9 Okl. 313, affirming judgment 49 P. 55, 5 Okl. 368.

A challenge to the array of jurors, on the ground that the proper officer of one township in the county failed to return a list of names of persons suitable to act as jurors, and that no jurors from such township were included in the panel, the jurors constituting the panel having been legally returned, drawn, and summoned, was properly overruled. State v. Frazier, 39 P. 819, 54 Kan. 719.

Where a jury list is made up in conformity with the law in force at the time, and subsequently the law is changed, but with a provision that any jury box filled in accordance with the old law shall not be affected, a jury list previously made up is valid. Saunders v. State, 111 P. 965, 4 Okl. Cr. 264, Ann. Cas. 1912B, 766.

85 In a criminal proceeding, when it is found that the provisions of the criminal procedure act relating to the drawing of a jury are inapplicable or ineffectual to meet the necessary requirements, the district courts, being courts of general common-law powers, may resort to the practice as it existed at common law to supply the statutory defects. Goodson v. United States, 54 P. 423, 7 Okl. 117.

86 Koontz v. State, 139 P. 842, 10 Okl. Cr. 553, Ann. Cas. 1916A, 689.

87 Harjo v. United States, 1 Okl. Cr. 590, 98 P. 1021, 20 L. R. A. (N. S.) 1013.

88 McIntosh v. State, 128 P. 735, 8 Okl. Cr. 469; Smith v. State, 111 P. 960, 4 Okl. Cr. 328, 140 Am. St. Rep. 688.

89 State v. Tawney, 112 P. 161, 83 Kan. 603.