Mitchell v. Likens

¶1There is but one objection raised to the record, judgment, and proceedings in this case, and that is exhibited in a bill of exceptions.

¶2It appears that when the cause was called for trial in the Circuit Court, and the jury were about to be sworn, the defendant challenged the array for misconduct, neglect, or default in the clerk, in not having recorded the panel, as he'is, by the 1st-section of the act regulating the mode of “summoning and impanelling grand and petit jurors,” of the 29th day of January, 1831, required to do; and that the Court'overruled the challenge, and the jury were sworn.

¶3We think that this challenge was well taken, and that it should have prevailed. It is settled in the case of Jones v. The State, decided at the May term, 1832, of this Court (1), that the array may be challenged and the panel quashed, for any partiality or default .of the hoard doing county business, or of the clerk in selecting or arraying the panel. Gardner v. Turner, 9 Johns. Rep. 260.—Eaton v. The Commonwealth, 6 Binn. Rep. 447.

¶4We think it is one of the essential requisites of the statute, that the clerk, so soon as the several jurors’ names are drawn and written on the panels to which they belong, shall record them without delay, and before any venire facias issues thereon, in the order-book as required by the act.

¶5The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.