¶1(concurring.)
¶2I think the record affirmatively discloses that the jurors were selected by the board of supervisors altogether from supervisor’s district No. 1, and that therefore it did not comply with the law in selecting them, so that to that extent I differ with my Brother Stevens. I fully concur, however, with him in holding 'that under section 2718 of the Code this error of the board cannot be complained of by appellant. I understand that the distinction between mandatory and directory statutes is this: A mandatory statute is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory statute is one the observance of which is not necessary to the validity of the proceeding. 36 Cyc. 1157; 2 Words and Phrases, 2d Series, 53.
¶3It is true that .the board of supervisors placed a less number of names in the jury box than the law requires, but appellant has made no complaint of this fact, and even had he done so I think that, under the provisions of section 2718 of the Code, this error committed by the board did not invalidate or make the jury box illegal.
¶4I think my Brother Cook is in error in stating that “under this decision the judge may refuse to order- a special venire to try a capital crime.” Section 2718 has no bearing on the right of the defendant to a special venire, but bears simply upon the manner in which the venire shall be listed and drawn and the jurors composing it shall be summoned and impaneled.