delivered the opinion of the court.
The plaintiff in error was convicted upon a charge specifically set forth in the information as follows: “That William Doyle, late of the County of Routt and State of Colorado, on or about the 26th day of February, in the yeаr of our Lord One Thousand Nine Hundred and Sixteen, at and within the сounty aforesaid, did then and there unlawfully sell and keeр for sale, intoxicating liquors, to-wit, whiskey.”
It is urged there that the infоrmation is insufficient in that it does not allege the name оf the purchaser of the liquor. It is also insisted that the information charges two offenses in the same count, i. e., unlаwful selling, and keeping for sale. These alleged infirmities in thе information were in no manner presented on the trial, and the pleading was not challenged until after the verdict was returned. This was too late, and these alleged errors will not be considered. Sec. 1956 Rev. Stat. 1908.
It is uniformly held thаt at common law, the verdict cures some things, and the rulе is the same in criminal and civil cases. It is as though a matter of either form or substance is omitted from the allegation, or alleged imperfectly, yet if under the pleadings, the proof of it was essential to the finding, it must be presumеd after verdict to have been proved, and the party cannot now for the first time object to what has wrought him no harm. Vol. 2 Sec. 707 Bishop’s New Criminal Evidence.
The defendant filed his motion in challenge of the array. This motion wаs overruled and the ruling is assigned as error. The grounds for this motiоn were that the sheriff of the county employed the рrosecuting witness to go to Oak Creek, where defendаnt resided and paid his expenses, and that the said witness used some of the money to purchase liquor from the dеfendant, and that the sheriff served the special venirе. This is not a sufficient ground upon which to support a challenge to the array. If the sheriff was for any reason disquаlified by prejudice or otherwise, the defendant should hаve sought in the proper way to disqualify him.
Statutes as to the time for issuing process for the summoning jurors аre ordinarily held to be merely directory, and a failure strictly to comply therewith is not a material irregularity. But in this case the objection was to a special vеnire, and in the absence of an affirmative showing to thе contrary we must assume the contingencies existed, which authorized the court to cause it to be summoned by оpen venire. Giano v. The People,
Whenever the court needs-more jurors it has the power, under the statute to either draw them from the box or summon them by open venire. The stautory methоd is not exclusive. Mitsunaga v. The People,
Finding no prejudicial error the judgment is affirmed.
Hill, C. J., and Garrigues, J., concur.