| Mo. | Mar 15, 1875
delivered the opinion of the court.
This was an indictment for grand larceny. The defendant was tried by a jury, was found guilty and sentenced.to im
The main ground insisted on by the defendant for a new trial and for arresting the judgment-, and the only ground insisted on in this court for tlie reversal of the judgment, is, that three of the jurors who tried the cause and found thevefidict against the defendant, had not been selected by the jury-commissioner of St. Louis county and summoned by the marshal in conformity with the statute of this state “to provide a jury-system in St. Louis county.” This act provides for the appointment of a jury-.commissioner for St. Louis county in a manner therein named. The commissioner, after his appointment, is required to take an oath that he will faithfully perform the duties of his office. &e. It is made the-duty of the commissioner “between the first day of July and the first day of September, in each year, in person or by deputy, to visit every house in the city and county of St. Louis, and obtain and take down the name and residence of every person (with the exception prescribed by the general law and those specified in the next succeeding- section) who is qualified for and subject to the performance of jury duty.”
The 7th section of the act exempts persons belonging to military and fire companies, and those not acquainted with the English language, &c., from jury duty. The ninth section requires the commissioner to enter the names of all persons subject to the performance of jury duty in alphabetical order, in a book to be kept for that purpose, which is to be corrected from time to time as required by the act. The 10th section provides that notice shall be given so that if persons who are exempt from jury duty have been listed amongst the list of jurors they can appear and have their names erased, etc. The 13th section provides that after the list of jurors shall have been completed, the commissioner shall write each name on a separate ticket and deposit all the tickets in a hollow
The 14th section provides that when jurors are required to serve in any court, etc., the sheriff or marshal shall obtain the names of persons to be summoned, from the commissioner, who shall furnish the same by drawing tickets from the wheel as directed in the act, so as to prevent any concert or partiality. And it is further provided that the tickets thus drawn shall not be put in the wheel again during the year in which they are drawn and that the drawing shall take place from time to time as jurors are required. The 15th section requires the sheriff or marshal to summon the persons whose names are furnished to attend as jurors at the time directed by the court, etc.
By the affidavits filed with the defendant’s motion for a new trial, it is shown tliat three of the jurors who tried the defendant were not on the list of jurors furnished to the marshal by the jury-commissioner for the St. Louis Criminal Court, and this is, as before stated, the only ground urged by the defendant, in this court, for a reversal of the judgment. The general rule which seems to have been adopted in the different States of the Union is, that the mistake or informality of the officers charged with summoning, returning, selecting and impaneling the jury, will be no ground for a new trial, unless there has been fraud or collusion, or material injury to the defendant. (3 Whart. Cr. L., § 216.) It is not pretended that there was any fraud or collusion on the part of any of the officers concerned in selecting and impaneling the jury in this case; and we would hardly be authorized to say, after the refusal of the trial-court to grant a new trial, and after the stipulation filed by the respective attorneys in the case in which it is admitted by the defendant’s attorney that the evidence was sufficient to justify the jury in finding the defendant guilty, that the defendant had been injured by the verdict, this stipulation being all we have in reference to the evidence in the case, the same having been made by the parties to save the trouble and expense of copying the
The main object of the legislature in the passage of the law regulating the selection of jurors in St. Louis county, was not so much to effect the rights of parties to actions, as it was to equalize jury service amongst the inhabitants of the county and ineidentally to prevent those who have no business of their own, and who are sometimes vulgarly- termed “court-house loafers,” from being summoned on juries, and thus to turn over to such persons the jury service of the country. The mode of selecting the jury is so far considered a formality, that courts generally consider such statutes directory and refuse to grant new trials for such causes after verdict, unless it is inferrable from the circumstances that the defendant has been injured by the failure to follow the provisions of the statute. The principle involved in this case was so decided in a late case in this court. (State vs. Pitts, 58 Mo., 556" court="Mo." date_filed="1875-01-15" href="https://app.midpage.ai/document/state-v-pitts-8004826?utm_source=webapp" opinion_id="8004826">58 Mo., 556; see, also, the case of The State vs. Blakely before referred to.)
There is no doubt but cases may be found, and in fact cases have been referred to by the defendant, holding a doctrine at variance with the law as before stated and as it is held in this State, but the question is settled so far as this court is concerned.
The judgment will be affirmed ;