State v. Sella, 168 P. 278

State v. Sella

168 P. 278 | Nev. | 1919

By the Court,

Coleman, C. J.:

Appellant was convicted of the crime of murder in the second degree. From the judgment, and from an order denying a motion for a new trial, he appeals.

1. Only two grounds are urged as a basis for the reversal of the judgment and order. The first alleged error pertains to the manner in which the panel from which the trial jury was selected was drawn. Section 4930 of the Revised Laws provides that the regular panel of trial jurors shall be drawn in the'oifice of the county clerk. The record shows that when the case was called for trial the attorney for the defendant orally interposed a challenge to the panel of jurors, upon the ground that *470said panel had not been drawn in the clerk’s office, but in the courtroom, of which the clerk’s office is .not a part. The challenge was denied by the court. We are of the opinion that the provision of the statute relative to the drawing of the panel in the clerk’s office is merely directory. State v. Barlow, 70 Ohio St. 363, 71 N. E. 726; State v. Jackson, 167 Mo. 291, 66 S. W. 938; State v. Barnes, 54 Wash. 493, 103 Pac. 792, 23 L. R. A.(N. S.) 932; State v. Washington, 82 S. C. 341, 64 S. E. 386.

The idea that the statute is merely directory in providing that the drawing of the jury panel shall be held in the clerk’s office is reinforced by the fact that it is nowhere required that notice of the time and place of the drawing shall be given. So far as the statute provides, the drawing may take place immediately after the entry of the order directing that it be made. In the case at bar it is not- even intimated that the defendant was in the least prejudiced by the fact that the drawing of the panel took place in the courtroom. In these circumstances for us to hold that such error was committed as would justify a reversal of the judgment would justly subject us to contempt and ridicule. The Supreme Court of Washington, in considering alleged irregularities in the selection of the panel of jurors, said:

“While they should be observed as closely as practicable, so that a competent, impartial and honest jury may be secured, it does not follow that an inadvertent failure to comply with every directory provision will vitiate a panel, unless it is made manifest, that some omission prejudicial to the appellant has occurred. ‘The manner in which the jury panel shall be drawn is regulated in the different jurisdictions by statutory provisions, which are in most respects merely directory, but which as to their material provisions, designed for securing a fair and impartial jury, must be substantially complied with. * * * The most important requirement is that the panel shall be drawn and not arbitrarily selected, and any act of this character on the part of the clerk or other officers is ground for challenge *471to the array.’ 24 Cyc. 218, 219, and cases cited. ‘In some of the states there are decisions to the effect that statutes which prescribe the powers and duties of jury commissioners and corresponding officers to whom is intrusted the selection or drawing of suitable persons as jurors, and which prescribe the time and manner of exercising such powers and performing such duties, are mandatory, and that strict adherence to the statutory requirements is essential to support the regularity and validity of the proceedings. But, notwithstanding these decisions, the great weight of authority is to the effect that the mere fact that officers intrusted with the several duties prescribed failed to conform precisely to' such requirements will not invalidate their action, unless it appears, or may be reasonably inferred from the circumstances, that the complaining party has been prejudiced, or that injury has been sustained by reason of neglect or omissions charged. In brief, courts will not sustain a palpable disregard of essential statutory provisions, nor overlook material departures therefrom; but, if there is a substantial compliance with the statutes, mere irregularities in the procedure, or mere informalities on the part of the officers charged with the selection and drawing, will be deemed unimportant.’ 12 Ency. Pl. & Pr. 276-278.” State v. Barnes, supra.

2. The second alleged error relied upon by appellant is that the district attorney in his opening address commented upon the fact that appellant had been convicted of the offense charged upon a previous trial. There does not purport to be in the record a bill of exceptions which contains all of the evidence given at the trial, and the brief of the district attorney quotes statements which, it is claimed, were made by the defendant upon direct examination, showing that he had been convicted upon a previous trial of the case. There is no denial of this statement of the district attorney; and, while we cannot consider the briefs in ascertaining what the testimony on the point was, the failure to deny this statement is significant. The record not purporting to *472contain all of the evidence given at the trial, this court will not presume that the district attorney discussed matters not covered by the evidence.

No error appearing, it is ordered that the judgment and order appealed from be affirmed.

Sanders, J.: I concur. Ducker, J., did not participate, having presided at the trial in the district court.