special personal disqualification, may serve a venire for jurors, and accused has no legal right to require that the sheriff serve the venire.90

Where all the jurors regularly summoned do not appear, the trial judge may order other drawings, or an open venire commanding the sheriff to summon the necessary number of talesmen to complete the jury.91

The fact that, after a challenge to the panel had been sustained for bias of the sheriff whose deputies summoned the jurors, some persons composing it were summoned on a second venire by an unprejudiced officer, is no ground for challenge to the second panel.92 Likewise it is no ground of challenge to a juror when called from the bystanders by the sheriff, or summoned by the court on a special venire, that he was one of an array which had been successfully challenged as being irregularly drawn.93 But on a motion to set aside a panel for bias of the officer who summoned the jurors and because the officer did not select the jurors from the body of the county, it is error to allow another officer at the suggestion of the officer who first summoned the panel to call the same jurors back into the jury box.9*

Statutes providing for selection of electors for jury service are not an essential element to the right of trial by jury, and the method of selection is within the control of the Legislature, provided the fundamental requisite of impartiality is not violated.95

To make effectual the constitutional guaranty of right of trial by jury, the district court possesses inherent power to provide a jury, and, while the Legislature may aid and regulate the exercise of such power, the selection of jurors from the inhabitants is a court function and not administrative in origin, purpose, or character." A resident district judge is authorized by law to appoint jury commissioners, and, when the appointment is made and it later develops that a portion or all of the commissioners appointed are

90 Saunders v. State, 111 P. 965, 4 Okl. Cr. 264, Ann. Cas. 1912B, 766. 91 Moore v. State, 9 Okl. Cr. 9, 130 P. 517.

92 Hisaw v. State, 13 Okl. Cr. 484, 165 P. 636.

93 State v. Yordi, 2 P. 161, 30 Kan. 221.

94 Shuford v. State, 113 P. 211, 4 Okl. Cr. 513.

95 Brown v. State, 14 Okl. Cr. 609, 174 P. 1102.

96 Moore v. Nation, 103 P. 107, 80 Kan. 672, 23 L. R. A. (N. S.) 1115, 18 Ann. Cas. 397.

disqualified to serve, a subsequent appointment of three additional commissioners is proper.97

Prejudice of the jury commissioners against a particular crime is no ground for a challenge to the panel or to the individual jurors. 98

Where the ballots drawn from the jury box were not folded so as to conceal the names therein written, as required by law, a challenge to the panel should have been sustained.99

A defendant has no vested right to a particular juror, who has been summoned, until he has been accepted and sworn.1

Where a member of the regular panel is absent from the courtroom when his name is called while the jury is being impaneled, the trial judge may send for him and have him brought into court and examined touching his qualifications as a juror in the case before the court.2

97 Munn v. State, 114 P. 272, 5 Okl. Cr. 245. 98 Remer v. State, 109 P. 247, 3 Okl. Cr. 706. 99 Grant v. State, 11 Okl. Cr. 396, 146 P. 919.

1 Blankenship v. State, 139 P. 840, 10 Okl. Cr. 551, L. R. A. 1916A, 812.

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

Sess. Laws 1907-08, c. 48, art. 3, § 6, relating to impaneling of special jury in county court, held only to apply to impaneling special jury after regular panel has been discharged. White v. Oliver, 122 P. 156, 32 Okl. 479.

(1118)

1187. Matters considered-Evidence read-Personal knowledge of juror. 1188. Discharge of jury.

1189. Objections and exceptions.

§ 1176. Admonition

"If the jury are permitted to separate, either during the trial or after the case is submitted to them they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them." 3

Where the jury, on submission of a civil case, are told that, if they do not reach a verdict within half an hour, they may separate for a definite period, and are cautioned as to their conduct during such separation, it is not necessary that the admonition be repeated before the separation actually occurs.*

§ 1177. Misconduct of others

That a witness held conversation with a juror will not vitiate the verdict unless such communication was calculated to corrupt or prejudice the juror against the losing party.3

§ 1178. View of premises

"Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation,

3 Rev. Laws 1910, § 5006.

Fields v. Dewitt, 81 P. 467, 71 Kan. 676, 6 Ann. Cas. 349.

Chase v. Cable Co. (Okl.) 170 P. 1172.

or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial."

In an action for personal injury from collision of automobiles, refusal to permit the jury to inspect defendant's car to see if it bore marks of the collision occurring several months before trial was not an abuse of discretion, though the evidence showed that the car was in the same condition."

Where the jury were allowed to inspect the premises under the charge of an officer, and the successful party talked with the jurors on the premises, and pointed out things in regard thereto, in violation of the statute and the warnings of the officer, a judgment for him will be reversed.8

§ 1179. Taking papers and articles to jury room

It is improper for counsel to hand any papers relating to the case to the jury to be taken to the jury room."

Where the pleadings are easily understood, it is not error to permit them to be taken to the jury room.10

6 Rev. Laws 1910, § 5004.

Such a view is discretionary with the trial court, and this discretion extends to the time during the trial at which the jury is directed to make a view, and whether the order shall be made where there has been a change in the condition of the locus. Spurrier Lumber Co. v. Dodson, 30 Okl. 412, 120 P.

934.

To order that the jury shall be conducted in a body, under the charge of an officer, to the place, etc., does not require the administering to the officer selected to have charge of the jury any additional oath. City of Emporia v. Juengling, 96 P. 850, 78 Kan. 595, 19 L. R. A. (N. S.) 223.

An action to determine the value of land taken for railroad purposes is one of the cases contemplated by section 277 of the Code, in which the court could make an order to allow the jury to view the premises, and such an or der is left by the statute to the discretion of the trial court. Coughlen v. Chicago, I. & K. Ry. Co., 13 P. 813, 36 Kan. 422.

7 Rudy v. Headley, 103 Kan. 417, 173 P. 913.

8 Pond v. Barton, 56 P. 139, 8 Kan. App. 601.

a Dane v. Bennett, 51 Okl. 684, 152 P. 347.

10 Culbertson v. Sheridan, 144 P. 268, 93 Kan. 268.

Where the pleadings are lengthy and complex, it is error for the court, without defining the issues, to send them with the jury for them to determine the

In the absence of any controlling statute or absolute rule of practice, it is discretionary with the trial court to permit the jury to take the written instructions with it on its retirement.11

The court has the discretion to permit the jury to take articles to the jury room.12

§ 1180. Additional instructions

The court has a large discretion in the matter of additional instructions after the jury has retired, and may supplement the original charge whenever confident that the ends of justice will be subserved by so doing,18 but cannot change the tenor of the charge already given.14

The action of the court, in recalling the jury and giving a further full and complete instruction as to the weight of certain opinion evidence, and the right to disregard it, has been held error, since the jury should be instructed before the argument is concluded.15 § 1181. Information after retirement

"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given in writing, and the court may give its recollections as to the testimony on the point in dispute, or cause the same to be read by the stenographer, in the presence of, or after notice to, the parties or their counsel." 16

points in controversy between the parties. Kansas City, Ft. S. & M. R. Co. v. Eagan, 67 P. 887, 64 Kan. 421.

In replevin, where the articles enumerated in the petition and in the return of the sheriff were numerous, it was not error for the court to allow the jury to take to their room the writ of replevin and the officer's return, with the instruction that the only purpose for which they could or should use them was in determining what goods the sheriff had found and taken thereunder, since it would be impossible for the jury to remember the various items. Samuels v. Burnham, 61 P. 755, 10 Kan. App. 574.

11 Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727.

12 Irby v. State (Okl. Cr. App.) 197 P. 526.

13 Carter v. Becker, 77 P. 264, 69 Kan. 524.

The trial court can give additional instructions after the jury has deliberated on a case for two days. Underwood v. Fosha, 150 P. 571, 96 Kan. 240. 14 Foster v. Turner, 1 P. 145, 31 Kan. 58.

15 St. Louis & S. F. Ry. Co. v. Vance, 58 P. 233, 9 Kan. App. 565.

16 Rev. Laws 1910, § 5007.

HON.PL.& PRAC.-71

(1121)