39 Iowa 631 | Iowa | 1874
The indictment was presented on the- 4th; day of December, 1872.- At the same term of the court, and two days prior to the filing of the indictment, the court iuade. the. following order:. “Now, to-wit: December 2d, 1872, i-t being the first day of December term' of the District Court of Fayette county, it appearing that the'jury lists and. the lists of jurors, returned by the townships for the year. 1872, were destroyed by fire, and no trial jury having been: sumino.ned for this term, it is ordered that a venire issue to. the sheriff of said county, to summon twenty-four jurors for: this term, returnable December 3d, at 10 o’clock A. M., to be summoned from the body of .the county.”
The defendant was arraigned and pleaded not guilty; and, on-the'eighth day of the term, when the case was called for trial and twelve jurors called into the box, the defendant interposed a challenge to the panel of the jury, because they were not selected, drawn or summoned as required by law. The challenge was overruled, the jury impaneled and the trial had, resulting, in the conviction of the appellant. . .
. The first question presented in the record is as to the legality of the order made by the court for the summoning .twenty-four jurors for -the term, or, in other words, did the law authorize the court to obtain jurors in that manner-under thé“ ,circumstances stated in the order?
Section 2738 of the Revision provided as follows: “ Where, from any cause, the persons summoned to serve as grand jurors, or petit jurors, fail to appear, or where, from any cause, the court shall decide that the'grand or petit jurors have been illegally elected, or drawn, the court may set aside the precept under which the j urors were summoned, and cause a precept to be issued .to the sheriff, commanding him to summon a sufficient number of persons from the body of the county to serve as jurors at the term of court then being holden, which precept may be made returnable forthwith, or at some subsequent day in the term, at the discretion of the-court.” •
. The deputy sheriffs and the special constables appointed by the sheriff under section 387 of the Revision, were' authorized to summon the jurors ordered. The duty of summoning jurors is devolved by the law on the sheriff. Rev.’, §2734: The deputy acts in place of the sheriff, and the special constables are to assist the sheriff in the discharge of his duties at and during the'sessions -of the court,. which -includes the service of process issued during.the session in the transaction of the business of the court. Rev., §§ 38'3, 386, 387.
We find no error in the record, and the judgment of the District Court must, therefore, be
Affirmed.