The opinion of the court was delivered by
Thеre was no error in denying the motion for а continuance or in the exclusion оf the jurors who had sat upon the jury that had disаgreed. These were discretionary matters.
The manner in which the trial jury was drawn was not, however, a discretionary but a statutоry manner, and the
The right of challenge which is thus, in a measure, dependent upon the оrder in which the names are drawn from the bоx, may be radically affected if .additiоnal names can be put into the box after the drawing of the jury has begun and is praсtically taken away if such names are put in the box after the defendant’s chаllenges are exhausted.
The statutory рrovision for the drawing and challenging of thе jury was clearly violated, and a morе manifest injury to the defendant cannot well be imagined.
It is no answer to say that the lаw was not violated with any wrongful intent or any design to wrong the defendant; a law oncе violated will soon be laid hold of by designing men with a wrongful intent. While the rights of the defendant are primarily considered in deciding whethеr the law has been violated, the prime importance of the decision is that the inviolability of the law is maintained.
Yor is it аny answer to say that the jury was compоsed of duly qualified jurors; it may well be that no one has a right to say by what particular jurоrs he shall be tried, but he has a right, within his statutory privilege, to say by what particular jurors he shаll not be tried, and this right is taken from him if after he hаs exhausted his challenges new names are for the first time put in and drawn out of the box.
This fundamental error, which is adequately рresented by assignments based upon exceptions taken at the trial, vitiates the judgment now before us.
The judgment of the Passaic Sessions is reversed and a venire de novo awarded.