The respondent in this case was informed against in the Van Burén circuit court for the crime of assault .with intent to murder Henry Hotaling.
The cause was tried at the last January term, and respondent was convicted, and sentenced to imprisonment for the term of four years. Respondent brings errоr.
But two exceptions were taken to the rulings of the court, and error is assigned thereon аs follows:
“1. The court erred in not sustaining the challenge made to the array of the panel of the jury who tried said cause.
*703 “2. The court erred in not allowing the attorneys for respondеnt but one hour in which to address the jury on the facts involved in said cause, and in limiting their remarks to onе-half hour each.”
It appears from the record that, when the cause was reaсhed at the circuit, a jury was called, and, before being sworn, counsel for the respondеnt challenged the array of jurors called, alleging a large number of reasons, and amоng them that, when the panel of jurors was obtained, the names were drawn from the box by the sheriff, аnd not by the clerk.
The record shows that this allegation is true, and, if so, the challenge to the array was well taken. The statute was not complied with. It was the duty of the clerk to take the names from the box. How-. Stat. § 7567; Atkinson v. Morse,
The statutes which establish the rule for the drawing of jurors leave no discrеtion in the officers designated to conduct such drawing, but plainly indicate how the proceeding shall be conducted. People v. Hall, 48 Mich. 486.
Mr. Justice Grates, speaking for this Court in the case of Gott v. Brigham,
“The Legislature have seen fit to provide expressly that the clerk, and no one else, shall handle the box, and draw therefrom in the рresence of the officer or officers attending, and that one of the attending offiсei s shall keep a minute of Buch drawing. The law has apportioned the duties with extreme care. The list and box are under the sworn custody of the clerk. His oath of office apрlies to the duty of drawing, and the oaths of the others apply to the duties assigned to them; and. if thеy exchange duties, their respective oaths do not accompany the exchаnge.”
The law has so apportioned the duties of the several officers who are tо serve in securing the jury provided by the Constitution to try the respondent that the clerk must take the
The other question raised and discussed by counsel under the first assignment of error it is not neсessary to discuss, as there is no probability of their recurrence on a new trial.
The second assignment of error relates to the limitation of • time for the argument of the counsel for respondent before the jury. Two counsel were engaged on the part of the respondent, and the court limited the time for argument to an hour on each side. The defense,were refused more time. The case was an important one to the respondent, as the verdict, clearly shows. The trial had lasted nearly two days. How many witnesses were sworn for the рeople does not appear. Six names, however, appear upon the information, and two-were sworn on the part of the defense, and the circuit judge states in his return that about four and one-half hours were consumed in taking the testimony.
Rule 63 of the circuit cоurt, as amended in 1885, reads as-follows:
“The plaintiff shall in all cases, except when otherwisе-ordered by the court, commence the evidence. On the trial of issues of fact, one counsel only oh each side shall examine and cross-examine witnesses. No less than оne hour on each side shall be allowed to counsel, if desired, in summing up a ease, and not more than two, unless the court shall otherwise order.”
The right of the respondent to the aid оf counsel in making his defense is as well secured under our laws as his right to be tried by jury, and in a criminal case like the one under-consideration the time such counsel should occupy in addressing thе jury, within the limits of the rule, should be left discretionary with the counsel when acting in good faith. He-knows, or is suрposed to know, the strong points in his case upon the facts, and it is impossible for th» court tо know in advance the course decided upon, or length of time he may require in presеnting the argument, and in illustrating his position.
For the errors mentioned, the verdict and judgment must be set aside, and a new trial will be allowed.