Exemption is a personal privilege which may be waived by the party enjoying it, and does not act as a disqualification that may be a ground for challenge.

In many of the States the statute expressly declares that exemption shall not be a ground of challenge.1

The right applies only to the time when the parties are actually engaged in the occupation that renders them exempt.2

Power of the Legislature to Exempt.-The legislature has not the power to exempt a person perpetually from serving on juries; such exemptions are subject to repeal by any succeeding legislature.3 The exemption from such service, which is one of the inseparable incidents of citizenship, is a mere gratitude, which may be withdrawn at the pleasure of the law-making power.4

VI. ORGANIZATION. The common law method committing to the sheriff, coroner or elisors the entire selection of the jurors 5

The assistant clerk of a court is exempt as an "officer" of the court. State v. Newton, 28 La. An. 65 (1876). And a deputy sheriff. Burns v. State, 12 Tex. App. 270.

And a member of the legislature while in session. Com. v. Walton, 17 Pick. (Mass.) 403.

A minister of the Methodist Episcopal church of the "local connection" as a "settled minister" within Stat. 1812 (Mass.). Com. v. Buzzell, 16 Pick. (Mass.) 153.

1. State v. O'Brien, 14 R. I. 266; State v. Forshner, 43 N. H. 89; State v. Wright, 53 Me. 328; U. S. v. Lee, 4 Mackey (D. C.) 489; s. c., 54 Am. Rep. 293; Burns v. State, 12 Tex. App. 270. One whose disabilities, by reason of participation in the rebellion, have not been removed, cannot, on this ground claim exemption from jury duty. Re Carnes, 31 Fed. Rep. 397:

2. The court is not authorized to discharge a person, regularly summoned, on his simple statement that he is a fireman, without other proof of his right to claim the benefit of the statutory exemption. Phillips v. State, 68 Ala. 469. A person who has a licence as an attorney, but who does not follow the business of the profession of the law as his vocation, is not exempt from serving on the jury. Wheatley v. State, 11 Lea (Tenn.) 262 See State 7. Ingraham, 1Cheves (S. Car.) 78; State v. Williams, 1 Dev. & B. (N. Car.) 372; State v. Hogg, 2 Murph. (N. Car.) 319; State v. Willard, 79 N. Car. 699.

But in Massachusetts it was held that an attorney who had retired from active practice yet had a right to prac

3. Bragg v. People, 78 Ill. 328. See cases cited in the preceding note.

Contra, Bloom v. State, 20 Ga. 443, where it was held that the act of 1854, exempting a fire company from jury duty as long as they remained members, is constitutional and unrepealed by the act of 1856. See State v. Ingraham, 1 Cheves (S. C.) 78 (Jury law of 1799).

In re Powell, 5 Mo. App. 220, it was held that the Missouri act of 1877, p. 280, repealing the clause in the act of 1851, p. 481, exempting firemen from duty, does not impair the obligation of a contract. Those who have served as firemen for seven years are still liable to jury duty. See Beamish v. State, 6 Baxt. (Tenn.) 738.

4. In re Gardiner, 67 Mo. 637, one who had been committed for contempt in refusing to serve as a juror, is not entitled to be released on habeas corpus, although the order of commitment shows upon its face that he is exempt by law from jury duty and that he claimed his exemption. [SHERWOOD, C. J., and HENRY, J.. dissenting.]

5. 3 Bl. Com. 354, 355; Co. Litt.

158.

has been supplanted in all of the States by statutes. In England the cumbrous fiction of the two writs of venire facias and the venire facias distringas is still used.1

In the territories in which no statutory method has been adopted, the usage of the common law prevails.2

Where a statute regulates the method, the common-law mode is not thereby excluded, but may be followed if any exigency arises.3

In general, the provisions of the statutes in regard to the mode of obtaining are directory, and a substantial compliance with the requirements of the law is sufficient.4

A wide discretion is allowed the court in organizing the jury; and its rulings will not be revised unless the excepting party show that he has been prejudiced, or the statute infringed.5

1. Selection of the List.-The first step in the organization of the jury is the selection of the list of qualified persons from whom the panel for a particular term (or for terms) is drawn.

It is wholly the creature of statute both in England", and in the United States, and did not exist at common law."

There is some variety in the provisions as to when and by whom the selection shall be made.

a. TIME.-In England and in most of the States it is made yearly; in others biennially, in others triennially.10

1. On the severance of the court of common pleas from the curia regis at Westminster it was provided by Stat. 13 Ed I., ch. 30, that the assize justices should try issues of "small examination;" hence the venire nisi prius, diverting the return to the justices of assize in the particular county. In order, however, to give opportunity to see the names of the jurors, it was provided in consequence of the Stat. 42 Ed. III, ch. II, for a fictitious writ with a return of the names only, and a second writ of distringas habeas corpora juratorum in consequence of seeming neglect, with an actual return.

For a full description see 3 Bl. Com. 350; Forsyth, History of the Trial by Jury; Proffatt on Jury Trial, § 131.

2. Beery v. U. S., 2 Colo. 186.

3. Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. Ill.) 328; White v. People, 81 Ill. 333; State v. Marsh, 13 Kan. 596; Wilson v. State, 32 Tex. 112; Levy v. Wilson, 69 Cal. 105.

4. State v. Carney, 20 Iowa 82; McCrory v. Anderson, 103 Ind. 12; construing act April 15th, 1881 (Ind.); Friery v. People, 54 Barb. (N. Y.) 319 (1865). See also Proffatt on Jury Trial,

§ 134; citing People v. Williams, 24 Mich. 156 (COLBY, J.).

5. Quinn's Admrs. v. Halbert, 57 Vt. 178. See R. L. (Vt.) § 816. Here the court adjourned, the first day eleven jurors having been accepted, but five of them talesmen; on the next day, another panel being present, the court discharged the eleven, commenced de novo and formed a panel from those regularly in attendance. Held, no erWatson v. Walker, 53 N. H. 131. 6. Forsyth on Trial by Jury, p. 140, note.

ror.

7. See Thompson and Merriam on Juries, § 44.

8. In England, the "Jurors Book" is made up annually for each county from lists returned from each parish therein of persons qualified to serve as jurors. Forsyth, Trial by Jury, p. 140, n.; Stat. 6 Geo. IV, ch. 50. See notes, p. 23.

9. Ala. Rev. Code (1867), § 4062; Geo. Code (1873), § 3907.

10. Maine Rev. Stat. (1871), ch. 106, §§ 1, 2.

In the organization of juries it is not necessary that the sheriff should furnish a list of all persons liable to jury duty, and put them in the jury box every December. The box must be exhausted

b. OFFICERS. In an increasing number of States the list is made up by special boards; in some by special officers in conjunction with other county officers, as in Arkansas, California, Colorado, Florida, Georgia, Illinois, Kansas, Minnesota, Mississippi, Nebraska, North Carolina, New Mexico, Pennsylvania, South Carolina and Texas; 1 in Kentucky and Texas by boards of jury commissioners only.2

In the New England States the selection is made by town authorities, and the venire is issued to them. In New York, Kansas, Wisconsin and Michigan, the result is certified by the town authorities to the county clerks.

In Iowa and Ohio the selection is made on the occasion of the general election, the lists being returned to the county clerk by the judges of election.4

before being refilled. Gettwerth v. Teutonia Ins. Co., 29 La. An. 30 (1877).

The time provided by statute, in which a jury shall be returned by the sheriff, is directory and not mandatory. Mowry v. Starbuck, 4 Cal. 274.

Under Iowa Statute, 1860, the jury year commences January 1st, instead of July 1st. State v. Schilling, 14 Iowa 455. 1. Ark. Dig. (Garrett), § 3663; Cal. Code Civ. Proc., 204; Gen. Laws Cal. 1877, § 1462; Bush Dig. Fla., ch. 104, 3; Code Ga. 1873, § 3907; R. S. III. 1880, ch. 78, § 1; Gen. Stat. Kan. 1868, P. 534; Stat. Minn. at L. 1873, p. 221, 23; R. C. Miss. 1880, § 1681; G. S. Neb. 1873, p. 642, § 658; Gen. Laws New Mexico, 1880, ch. 68, § 1; Bright Purd. Dig. (Pa.), "Juries," pl. 2.

In Alabama (Code Ala. 1876, § 4733), the board is composed of the sheriff, judge of probate and clerk of circuit court; in Arizona (L. Ariz., ch. 47, 13), the chairman of the board of county supervisors, the probate judge and clerk of circuit court; in Nevada (L Nev. 1873, § 1052), the county clerk and district judge; in Indiana (2 Ind. Rev. 1876, p. 29, § 1), the treasurer, auditor and recorder of the county; in Utah, by the clerk of the district and judge of the probate court (L. Utah 1876, p. 55); in Louisiana (R. S. La. 1877, 2127), by the sheriff, parish judge and clerk of the district court, together with two qualified electors. See for classifications, Thompson & Merriam on Juries; Proffatt on Jury In others by mixed boards of commissioners and other county officers. In Georgia (Code Ga. 1873, 3907), by the ordinary of the County, with the clerk of the superior

Trial, ch. II.

court and three commissioners appointed by the court; in South Carolina (R. S. S. Car. 1873, p. 518, § 1), by the chairman of the board of county commissioners, the county auditor and a jury commissioner appointed by the governor; in Pennsylvania, by the district judge and two commissioners who are elected (Purd. Dig., "Juries," pl. 2); in New Mexico, by the judges of the probate and district court, together with three commissioners appointed by the latter (Gen. Laws New Mexico, 1880, ch. 68, § 1).

2. G. L. Ky. 1879, p. 573, § 4; R. S. Tex. 1879, art. 3030.

3. In New Hampshire the selectmen, in Vermont the town board, in Rhode Island the town council, annually make a list. See Gen. Stat. N. H., ch. 194, § 1; G. S. Vt., tit. 9, ch. 15, § 89: G. S. R. I. (1872), p. 432. While in most of the New England States, at a meeting of the town, the lists may be corrected by striking off names, in Massachusetts they may be added or struck off. See G. S. Mass. 1860, ch. 132, § 6. Page v. Inhabitants of Danvers, 7 Metc. (Mass.) 326. In Maine the selection is made triennially by the municipal officers, treasurer and clerk of the town; Rev. Stat. 1871) ch. 106, §§ 1, 2. In New York by the supervisor, town clerk and assessors, N. Y. Code Rev. Jur., § 1035; in Kansas by the trustee of the township and mayor of the city; L. Kan. 1879, § 2693; in Wisconsin by the supervisors of towns, trustees of villages and aldermen of cities, R. S. Wis. 1878, § 2526; in Michigan by the assessors and township clerk, and assessor and alderman of city wards; R. S. Mich. 1871, $59 77.

4. In Iowa, before the election, the

In the remaining States, Delaware, Maryland, Missouri, Oregon, Tennessee, Virginia and West Virginia, the selection is made by the county courts. The number of names to be selected is prescribed by statutes, or is left by statute to the discretion of the court. I

c. MODE. In the United States courts the mode of selecting juries has been prescribed by a recent statute. The act of 18792 enacts that "all such juries, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons which names shall

have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well known member of the principal political party in the district in which the court is held, opposed to that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein."

By the same act the mode of designation practiced by the higher State courts may be used "so far as practicable by the courts of the United States or the officers thereof." 3

In using the mode of selection of the State, the federal courts are not bound to literal conformity, either as regards the persons by whom the selection is to be made, or the number selected or time of the selection.4

Provisions of statutes for the preparation of the jury lists are generally held to be directory only, and not mandatory.5 But sheriff notifies the election judges of the quota of jurors apportioned to each election precinct by the county auditor on the basis of the last election. The election judges select, and return the list with the election returns. Miller's R. C. Iowa. 1880, § 234.

In Ohio, the trustees of the township and the councilmen of the ward deliver the lists to the election judges, who return them to the clerk of the court. R. S. Ohio, 1880, § 164. See Thompson and Merriam on Juries, § 45.

The Nevada jury law of 1875 is unconstitutional and void, leaving the sections of the law of 1861, which it purported to repeal, in force. State v. McClear, 11 Nev. 39; State v. Johnson, 11 Nev. 148.

1. Kell v. Brillinger, 84 Pa. St. 276 (act (Pa.) March 18th, 1874.) See also preceding citations of statutes.

2. Act June 30th, 1879, § 2; Laws U. S. 1829 (Sess. I), ch. 52; 21 Stat. at Large 43.

3. R. S., § Soo; 5 Stat. at Large 394, not repealed by the act of 1879. "They (jurors in the U. S. court) shall be designated by ballot, lot or otherwise, according to the mode of forming such juries then practiced in such state court, as far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may by rule or order conform the designation and empanelling of juries, in substance, to the laws and usages relating to jurors in the State courts from time to time in force in such State."

requirements as to the officers by whom the selection is to be made are strictly construed.1

2. Drawing of the Panel. The provisions as to the drawing of the panel from the jury box (or wheel) are almost identical in the States outside of New England. Statutory provisions regulate all the details.

The essentials, after the names have been copied from the list on separate slips by the proper officer, folded and placed in the jury box (or wheel) are :

a. THE TIME OF DRAWING, which is usually specified as a certain number of days before the commencement of the term at which the jurors are required to attend.2

b. THE OFFICERS, who are either to draw the panel or attend the drawing. In New York the sheriff and county judge attend the

v. Haywood, 73 N. C. 437 (1875). In the absence of any showing of wrong motive in the selection of jurors, an informality, as that one or two were not on the list furnished the marshal by the jury commissioner, is no ground for a reversal. State v. Breen, 59 Mo. 413 (1875).

The omission to record the certificate to the list does not constitute an irregularity. Rosch . State, 15 Fla. 591 (1876); Carter v. State, 56 Ga. 463 (1876). Contra, Poulson v. Union Bank, 40 N. J. L. 563, as to the law of 1876.

The time held to be directory. Mowry. Starbuck, 4 Cal. 274; Kell v. Brillinger, 84 Pa. St. 276 (1877). Under the Pennsylvania Stat. 1834, 90, requiring that the sheriff shall cause the jury wheel "to be locked and secured by sealing wax, and thereon the said sheriff and jury commissioners shall impress distinctly their respective seals," an array drawn from a wheel sealed with but one seal should be set aside and the indictment quashed. Brown v. Conn, 73 Pa. St. 321 (1873). See in general, State v. Folke, 1 La. An. 744; Trimble v. State, 2 Greene (Iowa) 404; Curley v. Com., S4 Pa. St. 151; Brown v. State, 9 Neb. 157; Clark v. Saline Co. Commissioners, 9 Neb. 516. 1. The jury commissioners cannot delegate the duty to any other person. Their mere approval of a selection made by someone else can impart no validity to the selection. State v. Newhouse, 29 La. An. 822 (1877).

In Maryland, the approval and adoption by the "four judges" appointed to "meet" and "select" the names, without any "meeting," was held not to be a substantial compliance with the law in

Clare v. State, 30 Md. 163 (1868). In New Jersey the selection is committed to the sheriff alone. State v. Johnson, 1 N. J. L. (Coxe) 219. See also U. S. v. Woodruff, 4 McLean, 105, as to selection by the marshal in the U. S. circuit court.

A jury commissioner who has accepted another office and qualified, is constitutionally disqualified as a jury commissioner State v. Newhouse, 29

La. An. 824 (1871).

So a list prepared by the chairman of a retiring board of county commissioners. State v. Bryce, 11 Š. Car. 342.

Contra, State v. McJunkin, 7 S. Čar. 21 (1875), where it is held a commissioner of jurors holds over until his successor is appointed and has qualified. See Veramendi v. Hutchins, 56 Tex. 414 (G. L. 1876, p. 76, § 4).

In Massachusetts, a list was prepared and laid before a town by its selectmen. The town voted that said list be not accepted, and also voted to elect a list by nomination. Thereupon several persons, part of whom were on the list prepared by the selectmen and part not on that list were nominated and declared chosen. Held, that the persons were legally selected as jurors. Page v. Inhabitants of Danvers, 7 Metc. (Mass.) 326.

2. In New York, not less than fourteen nor more than twenty days. N. Y. Code, Rem. Jus., § 1042. İn Pennsylvania, thirty days. Bright Purd. Dig. "Juries," pl. 26. In Louisiana, thirty. La. Rev. Stat. (1870), § 2127. In Michigan, fourteen. Mich. Laws (1871),

5985. In Illinois, twenty. Ill. Rev. Stat. (1874), ch. 78, § 8. See Cal. Code of Proced., §§ 214, 219; Fla. Bush's Dig. (1872), p. 439.