a

2. Same-Irregularities of sheriff in forming panel.-In the absence of a showing that difficulty was had in obtaining from the prospective jurors summoned jury satisfactory to defendant, or that her substantial rights were prejudiced by reason of the acts of the sheriff in forming the panel, mere irregularities in the action of that officer in summoning persons to fill the venire would constitute no ground for the granting of her challenge to the entire panel.-People v. Manuel, 41 Cal. App. 153, 182 Pac. 306, approving and following doctrine in People v. Richards, 1 Cal. App. 575, 82 Pac. 691, and Wordsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

As to bias of summoning officer, see, post, § 1064 and note.

As to untriable ground of challenge to panel, see pars. 5, 6, this note.

3. Same Power of superior judges— Constitutionality of code provisions.-A ground of challenge to the panel that section 204 of the Code of Civil Procedure, in so far as it empowers superior judges to draw jurors in counties having over one hundred thousand inhabitants, and requiring the supervisors to draw them in other counties, is unconstitutional, is not tenable. That section is constitutional and valid.People v. Richards, 1 Cal. App. 566, 82 Pac. 691.

Same-Same-Constitutional

law.-In

4. cases of reasonable doubt the courts will not hold an act void because unconstitutional, and practice and acquiescence in the machinery provided for by the section in question as to the selection of juries, for and sanctioned by the many years, courts, furnish an almost irresistible reafor not overturning it. People v. Richards, 1 Cal. App. 566, 82 Pac. 691.

son

5. Same-Untenable grounds for challenge. The work delegated to the secretary of the judges, and the qualifications of jurors on the list, are not grounds for challenge to the panel.-People v. Richards, 1 Cal. App. 566, 82 Pac. 691.

See, also, par. 2, this note.

6. Same-Same-Panel drawn from list of previous year-Error not shown.-The provisions of the code as to the selection of jurors in January of each year are directory, and are to receive a liberal construction, where the code provides that after a list of jurors has been made and returned they shall serve for the "ensuing year," or until a new list shall be provided. error appears in a panel drawn from the list of the previous year, in the absence of any showing that a new list for the current year had been certified and filed

No

with the clerk.-People v. Richards, 1 Cal. App. 566, 82 Pac. 691.

as

7. Materiality of departures-In general. -Material departures are only such affect substantial rights of defendant in securing impartial jury.-People v. Sowell, 145 Cal. 292, 295, 78 Pac. 717.

8. Or such as may deprive defendant of opportunity to secure competent and impartial jury.-People v. Davis, 73 Cal. 355, 360, 15 Pac. 8.

9. It is difficult to lay down a rule which shall indicate in every case what is or what is not sufficient compliance with statute with respect to drawing and return of jury, but strict conformity to statutory method is practical.-People v. Davis, 73 Cal. 355, 360, 15 Pac. 8.

10. Where there is no material departure from forms prescribed for drawing and return of jury, challenge to panel is properly denied.-People v. Ah Fook, 64 Cal. 380, 382, 1 Pac. 347.

11. Same Appointment of elisor to summon special venire was not error, where showing had been made that both sheriff and coroner were disqualified.-People v. Young, 108 Cal. 8, 13, 41 Pac. 281; People v. Sehorn, 116 Cal. 503, 509, 48 Pac. 495.

12. In appointing elisor to summon special venire, court should follow statutes as closely as possible.-People v. Irwin, 77 Cal. 494, 499, 20 Pac. 56, following People v. Yeaton, 75 Cal. 415, 17 Pac. 544.

13. Appointing elisor, in absence of anything tending to show sheriff was disqualified to serve venire, is irregularity.People v. Irwin, 77 Cal. 494, 499, 20 Pac. 56.

14. Appointment of elisor to summon special venire, without any showing that the coroner was disqualified, as Well as sheriff, was error.-People v. Fellows, 122 Cal. 233, 236, 54 Pac. 830.

of

names

jury-box names of

15. Same-Concealment in jury-box. Where clerk testified that seventy-five ballots drawn from were folded SO as to conceal persons written thereon, it follows that name of each juror was duly concealed, hence there was no substantial departure from form prescribed by law.-People V. Rodley, 131 Cal. 240, 252, 63 Pac. 351.

16. Same-Depletion of regular panel from too great liberality on part of judge in allowing excuses to those summoned thereon will not render special venire, issued because of want of sufficient number of jurors on regular list to form panel, invalid.-People v. Hickman, 113 Cal. 80, 84, 45 Pac. 175.

exhaust drawn

20. Same-Failure to venire before issuing special venire for additional jurors to be summoned from body of county, was not error, unless there had been gross abuse of discretion.-People v. Sehorn, 116 Cal. 503, 508, 48 Pac. 495; People v. Durrant, 116 Cal. 179, 195, 10 Am. Cr. Rep. 499, 48 Pac. 75.

21. Same-Failure to have names of all jurors in jury-box at time of drawing was error. People v. Edwards, 101 Cal. 543, 544, 36 Pac. 7; People v. Compton, 132 Cal. 484, 486, 64 Pac. 849.

22. Where, at time of impaneling jury, twelve of jurors were engaged in deciding another case, but returned before jury was impaneled, it was error to proceed to impanel jury without placing names of such twelve in jury-box and drawing jury over again. People v. Edwards, 101 Cal. 543, 544, 36 Pac. 7.

23. Same-Failure to keep list of jurors selected from each township separate does not render panel invalid, where in fact they were selected from township, and defendant's counsel were able to list jurors from each township.-People v. Sowell, 145 Cal. 292, 297, 78 Pac. 717.

24. Same-Failure of minutes of board of supervisors to contain record of selection of panel of jurors is not material departure, where it appears that jurors on list certified and delivered to county clerk were selected by board of supervisors.-People v. Sowell, 145 Cal. 292, 295, 78 Pac. 717.

25. Same-Failure to select jurors from township in which there were number of electors does not render selection of jurors invalid, as such fact does not necessarily show that there were any persons in such township qualified to be returned as jurors, especially where it appears that jurors selected were selected from other townships in proportion to their population.-People v. Sowell, 145 Cal. 292, 297, 78 Pac. 717.

26. Where jury-list did not contain names of any persons from one town, but township in which such town was situated contained other territory, and it did not appear but that some of names on list were those of persons living within township, challenge to panel on such ground properly disallowed.-People V. Searcey, 121 Cal. 1, 3, 41 L. R. A. 157, 53 Pac. 359.

27. Same-Failure of clerk to state date of order directing drawing of list of jurors in his certificate is not material departure from form prescribed so as to render challenge to panel valid.-People v. Iams, 57 Cal. 115, 124.

28. Same-Non-appearance of names on jury-list on last assessment-roll of county not sufficient departure from demands of law to render disallowance of challenge to panel on such ground improper.-People v. Searcey, 121 Cal. 1, 3, 41 L. R. A. 157, 53 Pac. 359.

29. Same-No trial jury having been drawn or summoned for term, order directing sheriff to summon panel was proper, hence challenge to panel on ground that jury was not drawn as required by law properly denied.-People v. Davis, 47 Cal. 93, 95; People v. Ah Chung, 54 Cal. 398; Leahy v. Southern Pacific R. Co., 65 Cal. 150, 3 Pac. 622. See People v. Stuart, 4 Cal. 218, 225; People v. Vance. 21 Cal. 400, 403; People v. Williams, 43 Cal. 344, 349; Levy v. Wilson, 69 Cal. 105, 111, 10 Pac. 272; People v. Leonard, 106 Cal. 302, 318, 39 Pac. 617.

30. Where court found that jurors, though legally drawn, had not been legally summoned, and thereupon directed that additional jurors be summoned by sherifft from body of county, challenge to panel was properly denied.-People v. Devine, 46 Cal. 45, 47.

31.

Special venire can properly be ordered, though drawing of regular jurors for year was invalid, hence challenge for such cause is properly denied.-People v. Vincent, 95 Cal. 425, 427, 30 Pac. 581.. 32. Same-Returning fewer jurors than ordered. Returning 298 jurors instead of 300, as ordered by court, does not constitute material departure.-People v. Sowell, 145 Cal. 292, 295, 78 Pac. 717.

33. Same-Selection from names left in box at end of previous year, of persons who were qualified and had not served in such year, for jury-list for current year, did not make disallowance of challenge to panel error where number of jurors fixed in order of court was not increased thereby. -People v. Rodley, 131 Cal. 240, 252, 63 Pac. 351.

to

34. Same Special venire directed to coroner, who appointed deputy to serve it, giving him list of names of persons be summoned, is ground for challenge to panel.-People v. Enwright, 134 Cal. 527. 529, 66 Pac. 726.

35. Court excusing jurors of own motion -Not ground of challenge to the panel.— The fact that on the call of the panel of jurors, the presiding judge of the court excused two of the jurors of his own motion, did not furnish a ground for a challenge to the panel, none of the substantial rights of the defendant being invaded.-People v. Harris, Cal. App., 188 Pac. 65. 36. Waiver of objection. Where, in drawing panel, names from panel in another department were inserted and afterwards withdrawn, at which time defendant's counsel waived objections to any irregularity, and special venire was ordered after regular panel was exhausted,