People v. Compton

GAROUTTE,J.

—Defendant appeals from a judgment and order denying his motion for a new trial. His principal contention is, that the jury which convicted him was improperly selected; and with this contention the court agrees.

For present purposes it will be assumed that there was a regular panel of jurors present in department 2 of the court for the purpose of trying the defendant. When the impanelment of the jury began, the court made an order that certain

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other jurors, attending other departments of the court at that time, appear in department 2 to act in the cause, provided the jury was not selected from the regular panel then present. In the selection of the jury, the jurors regularly in attendance upon department 2 were exhausted, and no jury obtained, whereupon the court ordered the names of those jurors who had appeared from other departments in pursuance of its aforesaid order, to be placed in the box, and it was from these jurors that the jury was finally completed. The course here pursued we deem a radical departure from the procedure laid down in the statute for the selection of a jury in a criminal case. The jurors brought from other departments of the court were either a part of the regular panel, or they were not. If they formed a part of the regular panel, their names should have been placed in the box with the other part of the panel. There is no principle of law by which, in a criminal case, the court may place the names' of part of a panel in the box and draw the jury therefrom. Neither is there any principle of law by which the court may place the names of a portion of the panel in the hox and exhaust it, and thereafter place the remaining portion thereof in the box. The defendant is entitled to select the jury from the entire panel present and competent to act. If these jurors from other departments were present in court, properly assembled there, for the purpose of trying this cause, their names should have gone into the box before any names whatever were drawn therefrom. Defendant had a legal right to so demand. Taking the other view of this matter, if the jurors brought from other departments of the court were not properly a part of the regular panel, then the court had no authority to place their names in the box at all; for jurors not on the panel cannot be brought into court to try a cause by the mere order of the court. The statute does not authorize it.