85. When coroner to perform the duties of sheriff. In case of death, &c., of sheriff and coroner, court to appoint a person. 86. Coroner to act where sheriff is incompetent. 87. Verdict not to be set aside for defect of juryprocess. Pleading general issue to be a waiver. XII. SPECIAL PROVISIONS RELATING TO 88. Criminal court to issue writs of venire. 90. Duty of assessors in Philadelphia. 91. Board for drawing and selecting jurors in Philadelphia. 92. Receiver to furnish list of taxables. Board to select jurors therefrom. 93. Names, &c., to be placed in a wheel. List to be certified to each of the courts. 94. How jurors to be drawn. One list to be certified to the court and one to the sheriff. 95. How jurors to be summoned. Sheriff to make return on oath. 96. No one to be excused, except for cause. Penalty for non-attendance. 97. How talesman to be drawn. 98. No citizen to be liable to serve more than once in three years. 99. Sheriff to keep the wheel secure. What to be deemed evidence of misdemeanor. Punishment. 100. Duties of sheriff may be performed by deputy. Liability of sheriff. 101. One judge may act with the sheriff in drawing jurors. 102. List of names to be filed in supreme court only. 103. When additional names to be placed in the wheel. 104. Proof of exemption from jury service. I. Of the jury commissioners. 1. At the general election to be held on the second Tuesday of October, Anno 10 April 1867 § 1. Domini 1867, and triennially thereafter, at such election, the qualified electors of P. L. 62. the several counties of this commonwealth shall elect, in the manner now provided Jury commissionby law for the election of other county officers, two sober, intelligent and judicious ers to be elected. persons, to serve as jury commissioners in each of said counties, for the period of three years ensuing their election; but the same person or persons shall not be eligible for re-election more than once in any period of six years: Provided, That each of said qualified electors shall vote for one person only as jury commissioner; and the two persons having the greatest number of votes for jury commissioner, shall be duly elected jury commissioners for such county. Ibid. § 2. Their duties in the 2. It shall be the duty of said jury commissioners, president judge or additional law judge of the respective district, or a majority of them, to meet at the seat of justice of the respective counties, at least thirty days before the first term selection of jurors. of the court of common pleas, in every year, and thereupon proceed, with due diligence, to select, alternately, from the whole qualified electors of the respective county, at large, a number, such as at the term of the court of (common) pleas next preceding shall by the said court be designated, of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county during that year. And the said jury commissioners, president judge or additional law judge, or a majority of them, shall, in the mode and manner now directed by law, place the names of persons so selected in the proper jury wheel, and the said jury wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the custody of the sheriff of said county. 3. Said jury commissioners and the sheriff of the respective county, or any two of them, (c) shall draw from the proper jury wheel, panels of jurors, as grand jurors of the proper county, and as petit and traverse jurors, for the trial of issues in fact which may be taken in any action, in any of the courts, civil and criminal, of the several counties aforesaid, in the manner now practised and allowed; but before the said jury commissioners and sheriff shall proceed to select or draw jurors in the manner aforesaid, they shall severally take the oath or affirmation now prescribed by law to be taken by the sheriff and county commissioners before selecting and drawing jurors. (d) Ibid. § 3. How jurors to be drawn. acts. Ibid. § 4. 4. So much of any act or acts of assembly of this commonwealth, as makes it the duty of the sheriff and county commissioners of any of said counties to select and draw jurors, shall be repealed and cease to have any force or effect Repeal of certain from and after the first day of December next, Anno Domini 1867: Provided, Reservations and That all acts and parts of acts of assembly now in force in relation to the custody, exceptions. sealing and unsealing, locking and opening of the jury wheel of the respective county, and all acts and parts of acts of assembly now in force, imposing any penalty or punishment on the sheriff and county commissioners or either of them, for anything done or omitted by them, or either of them, in relation to the keeping, locking, opening, sealing or breaking the seal of any jury wheel, or in rela (c) See Commonwealth v. Brown, 30 L. I. 381. And see act 3 April 1872, as to Lancaster county. P. L. 799. (d) The 87th section of the act of 1834 provides, that before the sheriff and commissioners shall make any selection of jurors, in any year, they shall take an oath or affirmation before some person having authority to administer oaths, in the following form: 'You and each of you do [swear or affirm] that you will use your utmost endeavors and diligence in making an impartial selection of competent persons for jurors, during the ensuing year, and that you will not suffer partiality, favor, affection, hatred, malice or ill-will, in any case or respect whatever, to influence you in the selecting, drawing or returning of jurors; but that you will, in all respects, honestly conform to the true intent and meaning of the acts of assembly in such case made and provided." P. L. 357. The array will not be quashed, because the jury commissioners performed the preliminary duties in selecting and placing the names in the wheel, before being sworn, if the oath were administered, before any selection of jurors. Campbell v. Commonwealth, 84 P. S. 187. 10 April 1867 § 4. tion to the selecting or drawing of jurors, shall be taken, deemed and held to apply to the said jury commissioners and sheriff. P. L. 62. Ibid. § 5. Compensation of commissioners. Ibid. § 6. 5. Each of said jury commissioners shall be allowed and paid out of the respective county treasury, two dollars and fifty cents per day, and four cents per mile circular, from the residence of the commissioners to the court-house. 6. It shall be the duty of each of said jury commissioners, to take upon himself and discharge the duties of his said office, under a penalty of one hundred dollars for Penalty for refusal each and every neglect or refusal to attend the same, to be sued for and recovered to assume the office. Ibid. § 7. How vacancies to be filled. 14 April 1884 § 79. P. L. 356. How juries to be selected, &c. Ibid. § 80. Commissioners to keep one wheel. Ibid. § S8. Each wheel to have lock and key. Ibid. § 84. Penalty for neglect. Ibid. § 88. written on slips before any justice of the peace of the proper county, as debts of like (amount) are now by law recoverable; ten dollars of which shall go to the person suing, and the residue to be paid, by the said justice, to the treasurer of the respective county, for the use of the same. 7. In case of the inability of either or all of the said jury commissioners, by sickness, death or other unavoidable cause, to discharge the duties of said office, or in case of neglect or refusal to serve thereon, it shall be the duty of the president judge in such county wherein said vacancy may have occurred, to appoint a suitable person or persons, as the case may be, possessing the qualifications aforesaid, to perform the duties of said office during such vacancy; and such person or persons, after having complied with the requirements of the third section of this act, shall proceed to discharge the duties of said office during the remainder of the term so vacated: Provided, That the provisions of this act shall not apply to the city of Philadelphia. II. Of the selection of jurors. 8. The juries for the trial of all issues in fact, which may be taken in any action in any of the courts of this commonwealth, shall be selected by the sheriff and commissioners, and summoned and returned to the respective court in the manner following, and not otherwise, to wit: 9. The commissioners of the several counties of this commonwealth, except the county of Philadelphia, (e) shall, from time to time, and as occasion requires, provide and at all times keep one wheel for the purpose of containing the names of jurors for the courts of the respective county. 10. Every of the said wheels shall be provided with a sufficient lock and key; the wheel shall remain and be in the custody of the commissioners of the respective county, and the keys thereof in the custody of the sheriff of the same county.(g) 11. If the sheriff and commissioners of any county, or any of them, shall neglect or refuse to lock and seal the wheel or wheels aforesaid of the respective county, or if the commissioners neglect or refuse to take charge of such wheel or wheels, or if the sheriff neglect or refuse to take charge of the key belonging to such wheel or wheels, the sheriff or commissioner so offending, and every of them, shall, on conviction thereof in the court of quarter sessions of the respective county, forfeit and pay a fine, not less than one hundred dollars, nor more than one thousand dollars, at the discretion of the court. 12. The sheriff and commissioners aforesaid shall provide a sufficient number of small slips or pieces of paper, upon each of which they shall write or cause to be Names, &c., to be written (h) the name, surname and addition or occupation, (i) and place of abode of each one of the persons selected, they shall roll up or fold the said slips so that the names shall not appear without unfolding thereof,(k) and thereupon they shall deposit the names of the persons so selected, in the appropriate wheel as aforesaid. and placed in the wheels. Ibid. § 90. Wheels to be 13. As soon as the selection of jurors and the depositing of their names in the wheel as aforesaid shall be completed, the sheriff shall cause the same to be locked, locked and sealed. and secured by sealing-wax, and thereon the said sheriff and commissioners shall impress distinctly their respective seals.(1) Ibid. § 91. Not to be opened 14. The sheriff, in the absence of the commissioners of the respective county, or of, at least, two of them, and the commissioners, in the absence of the sheriff of the except for drawing county, shall not, at any time, open any of the wheels aforesaid, nor shall the sheriff and commissioners open any such wheel, except for the purpose of depositing therein the names of persons to be jurors, in pursuance of law, or an order of court, or of drawing a panel or panels of jurors therefrom, in compliance with a Penalty for viola- precept directed to them for that purpose. And if any sheriff or commissioner juries. tion. shall offend herein, he shall forfeit, for the use of the respective county, a sum not exceeding five hundred dollars, at the discretion of the court having jurisdiction of the offence. 15. When the array of jurors returned at any court, shall be quashed, by reason 14 April 1834 § 98. of any fault or irregularity in the selection of persons or depositing their names in P. L. 356. the wheel as aforesaid, the sheriff and commissioners of the respective county shall, Proceedings where upon the order of such court, forthwith take out of the wheel, from which such array is quashed, jurors were drawn, all the names therein deposited, and make a new selection of for irregularity in selection of jurors. persons, and deposit their names in the wheel for the remainder of the current year, in the manner aforesaid. Ibid. § 94. Where wheels are 16. If, at any time, any such wheel as aforesaid shall be broken open or destroyed, so that no jury can be drawn from it, a new selection of persons shall be made, and their names deposited in such wheel, or in a new wheel, to be pre- broken open or pared for that purpose, for the remainder of the current year, thirty days before destroyed. the court at which such jurors shall be summoned to serve, if so many days shall intervene. 17. If, by any accident, mistake or neglect of the sheriff or commissioners of Ibid. § 95. any county, or either of them, the wheels aforesaid, or any of them, shall be Where array is opened, unlocked or unsealed, except in the presence of such sheriff or commis- quashed, in consesioners, it shall be the duty of the court, upon sustaining a challenge to the array quence of wheel for any such cause, to direct the sheriff and commissioners forthwith to take out being opened contrary to law. of the wheel the names therein deposited, and to make a new selection of persons, and deposit their names in such wheel, for the remainder of the current year, in the manner aforesaid. P. L. 16. When additional 18. Whenever, by reason of adjourned or special courts or otherwise, there 6 April 1869 § 1. shall not be a sufficient number of names left in the wheel in charge of the jury commissioners of any county, to fill the requirements of any venire issued by the courts of such county, the court of common pleas, or any two judges thereof, names to be placed may order such additional number of names to be placed in the wheel as they in the wheel. shall deem necessary for the balance of the year; whereupon, such additional number of names of sober, intelligent and judicious persons shall be selected and deposited in the proper wheel, in the manner required by the act to which this is a supplement. P. L. 87. wheels. 19. The number of persons so selected by the jury commissioners, and presi- 18 Feb. 1871 § 1. dent judge, or additional law judge, or a majority of them, under the second section of the act of April 10th, 1867, (m) to serve as jurors in the several courts of Number of names the respective counties of this commonwealth, to which said section refers, shall to be placed in the in all cases in which that number has not been designated by the court of common pleas of the county, at the term of the court next preceding the annual meeting of said jury commissioners, president judge or additional law judge to make such selection, be the same number which had been selected and placed in the proper jury wheel or wheels for the year next preceding; and the selection and placing of the names of such number in the proper wheel or wheels, by said jury commissioners, president judge or additional law judge, or a majority of them, shall have the same effect as though the number had been designated by the court of common pleas of the respective county at the time required by said several sections of said act. be ordered. 20. Whenever it shall be made to appear to the court of common pleas of any 18 March 1874 § 1. county, that the provisions of the laws for the selection of persons to serve as P. L. 46. jurors in the courts of such county, or the depositing of their names in the wheel, When new selechave not been complied with, or that the wheel containing the names of such per- tions of jurors may sons has been broken open or destroyed, so that no jury can be drawn from it, or if by accident, mistake or neglect of the sheriff or jury commissioners of any county, or either of them, the wheel aforesaid has been opened, unlocked or unsealed, except in the presence of such sheriff and jury commissioners, and a challenge to the array has been sustained for any of the last-mentioned causes, or that the array of jurors returned at any court in such county has been quashed by reason of any fault or irregularity in the selection of persons, or on the depositing of their names in the wheel, the said court shall order a new selection of persons to be made, of such number as said court shall designate, and their names deposited in such wheel, or a new wheel to be prepared for that purpose for the remainder of the current year.(n) Ibid. § 2. 21. Thereupon it shall be the duty of the jury commissioners, president judge or additional law judge of the respective district, or a majority of them, to meet at the Duties of judges seat of justice of the respective county, at least thirty days before the court at which and jury commissuch jurors shall be summoned to serve, and take out of the wheel all the names sioners. therein deposited, or, if a new wheel, clean out the same and make a new selection of persons, and deposit the names so selected in such wheel or in the new wheel, for the remainder of the current year, in the same manner as is now directed by law for the selection of such persons and the depositing of their names in the wheel at the beginning of the year. 22. A list containing the name, occupation and residence of every person placed (m) Supra 2. Ibid. § 8. of those taken from it. Kell v. Brillinger, 84 P. S. (n) A new selection must be made; it is not a com- 276. pliance with the act, to return to the wheel a portion P. L. 46. 18 March 1874 § 3. in the jury wheel, shall be kept, certified by the judge and jury commissioners, or such of them as shall be present at the selection of such persons, and filed of Certified lists to be record in the office of the prothonotary of the court of common pleas of the respective county. filed. Ibid. § 4. Oaths to be subscribed and filed. Ibid. § 5. Proceedings when array is quashed. 5 March 1873 § 1. P. L. 5. Other cases in which new selec 23. Whenever, by existing laws, it shall be the duty of any person connected with the selection or drawing of jurors, to be sworn, the oath required to be taken shall be reduced to writing, subscribed by the person qualified, and filed in the office of the prothonotary of the court of common pleas, as a part of the records thereof. 24. Whenever the array of jurors returned to any court of oyer and terminer and quarter sessions of the peace shall be quashed, it shall be the duty of the clerk of said courts to forthwith certify the record thereof to the court of common pleas, where it shall be entered upon and made a part of the record of said court of common pleas. 25. When it shall appear to the judges of any of the courts of this commonwealth, or to the president judge thereof, if in vacation, that there has been such irregularity in the sealing up of the jury wheel, or in the custody of the same, as would constitute due cause of challenge of the array, it shall be lawful for such tion of jurors may judges, or for such president judge, if in vacation, to make an order upon the proper officers, requiring them forthwith to take from such wheel the names therein deposited, and make a new selection of persons to serve as jurors for the remainder of the current year, whose names shall be deposited in the said wheel and sealed up according to law. be ordered. 14 April 1834 § 96. P. L. 358. When venires to issue. Ibid. § 97. III. Of writs of venire in the civil courts. 26. The prothonotaries and clerks of the several courts of common pleas [district courts and court of nisi prius,] of this commonwealth, shall, as soon as conveniently may be after the list of the causes at issue and for trial at any term of the respective court shall have been settled, and at least thirty days before the beginning thereof, make out and forthwith deliver to the sheriff of the respective county a writ, commanding the said sheriff and the commissioners of the said county to impannel, and the said sheriff to summon a jury, or a jury of special jurors, as the case may be, for the trial of all such issues. 27. Every writ of venire for the trial of issues in fact, shall be awarded of the To be awarded of body of the county wherein such issues shall be triable, and shall be made according to the form following: the body of the county. Ibid. § 98. Form of venire. Ibid. § 99. Number of jurors County, ss. The Commonwealth of Pennsylvania, to the sheriff and com missioners of said county, greeting: We command you, and every of you, that in your proper persons you draw from the wheel [or from the proper wheel if there be several,] containing the names of the persons selected according to law to be jurors [or special jurors, as the case may be,] in the courts of the said county, the names of persons to be jurors in our said county, the 28. The number of persons who shall be summoned and returned as aforesaid, to serve as special jurors in the court of common pleas or district court of the to be summoned. county of Philadelphia, or in the supreme court at bar, or at nisi prius, shall be forty-eight; and the number of general or common jurors in the same courts shall be not less than forty-eight nor more than sixty; and in the courts of common pleas and district courts of any other county, not less than thirty-six nor more than sixty. Ibid. § 100. 29. The supreme court shall award process as aforesaid, for the trial of all issues in fact, in all pleas, civil or criminal, depending in the said court, returnable returnable in nisi during the sitting of the said court at nisi prius, at such time as they shall see fit.(o) When venires to be prius. Ibid. § 101. 30. The venires issuing as aforesaid, from the district court, court of common pleas or quarter sessions of the county of Philadelphia, shall be made returnable Courts of Philadel into the same, at such particular day of the term as the said court shall direct and phia to fix returndays. appoint. Ibid. § 104. When returnable in the common pleas. Ibid. § 105. 31. The venires issuing as aforesaid, in any county wherein the term of the court of common pleas is to continue two weeks, shall be made returnable on the first day of the second week of the term, unless otherwise specially ordered by the court. 32. The judges of the several courts of common pleas shall have power to order, (0) See tit. "Supreme Court." P. L. 358. at any term of the court, that no writ of venire shall be awarded as aforesaid, 18 April 1834 § 105. for the next succeeding term of the said court, if, in their opinion, the criminal business which will be depending before them as justices of the court of quarter When courts may sessions, or as judges of oyer and terminer, during such succeeding term, will direct no venire to interfere with, and prevent the holding trials of issues in the court of common pleas. 33. Whenever a court for the trial of issues depending in the court of common pleas of the county of Philadelphia, shall be appointed to be holden by the president, or the legal associate judge of the said court, a separate writ of venire shall be awarded as aforesaid, returnable before such judge, at such particular day as the court shall appoint. issue to a term. Ibid. § 106. Ibid. § 107. 34. Whenever an adjourned or special court of common pleas shall be directed in any county, the judges of the said court, or any two of them, may direct a venires for special venire to issue for a jury, thirty days before the time of the holding thereof, return- courts. able at the said court, notwithstanding the regular term or return-day may intervene between the issuing and return of such writ. P. L. 29. 35. The judges of the several judicial districts of this commonwealth, be and 18 April 1876 § 1. they are hereby authorized and empowered to cause the issuance of such number of venires for the attendance of jurors upon their courts, during the regular or Judges may issue adjourned terms, as may be necessary for the prompt disposition of the business any number of thereof. venires. Ibid. § 2. Terms of jurors. 36. Such venires shall issue for the return of jurors for attendance during one or two weeks, as may, from time to time, be directed by the said judges. 37. The several venires, when more than one shall be necessary for the same regular term, may issue together or at different times; but each venire shall issue at least thirty days before the first day on which the jurors to be summoned under it May issue at differshall be called to attend. IV. Of writs of venire in the criminal courts. ent times, in term. P. L. 360. issue. 38. The clerks of the several courts of oyer and terminer, quarter sessions and 14 April 1834 § 108. mayor's courts of this commonwealth, shall, upon the order or precept of the said court or two of the judges thereof, in vacation, issue, according to the direction of When venires to such order, to the sheriff and commissioners of the proper county, a writ or writs, (p) commanding the said sheriff and commissioners to impannel, and the said sheriff to summon, a grand jury or petit jury, or both, to inquire of or try all causes and matters which may be depending in the said court, and give to them in charge at the term thereof to be holden next after the date of the said precept. 39. The writ of venire for a grand jury in any of the said courts, shall be made according to the following form, to wit: Ibid. § 109. Form of venire for County, ss. The Commonwealth of Pennsylvania, to the sheriff and commis- grand jury. sioners of the said county, greeting: We command you, and every of you, that in your proper person you draw from the wheel [or from the proper wheel, if there be several], containing the names of the persons selected for jurors according to law, the names of twenty-four persons to be grand jurors in our [describing the court] to be holden at day of at court in and for the said county, on the o'clock in the noon of that day: And further, That you, the said sheriff, do summon the persons whose names shall be so drawn, and every of them, to come before our said court, at the said time and place, to inquire of and perform all those things which on our part shall be enjoined upon them; and that you, the said sheriff, have then and there this writ, and the names and surnames of the persons so summoned, with their additions respectively, in a panel hereto annexed, and otherwise make return, at the day and place aforesaid, how you shall have executed this writ. Witness (J. B.), at, &c.(q) 40. It shall be lawful for the judges of the court of quarter sessions to award one writ in the form aforesaid for the summoning and returning a grand jury in the said court, and in a court of oyer and terminer to be holden by them at the When single venire may issue for oyer same time; and if distinct writs of venire shall in such case be awarded, it shall and terminer and be the duty of the said judges to order the sheriff and commissioners of the quarter sessions. respective county to annex and return one and the same panel to each of the said writs. 41. The writ of venire for a petit jury in any of the said criminal courts, shall be made according to the following form, to wit: Ibid. § 110. Ibid. § 111. Form of venire for County, ss. The Commonwealth of Pennsylvania, to the sheriff and commis- petit jury. sioners of the said county, greeting: We command you and every of you, that in your proper persons you draw from the wheel [or the proper wheel, if there be several], containing the names of the persons selected, according to law, to be jurors in the courts of the said county [or in the court of the city of as the case may be,] the names of persons to be jurors in our to be holden at in and for said county [or city,] the day of o'clock in the court at noon of that day: And further, That you, the said sheriff, do summon the (p) Only one precept need be issued for the drawing of jurors for the quarter sessions and oyer and terminer. Commonwealth v. Morton, 1 Kulp 276. (q) See Commonwealth v. Salter, 2 Pears. 461. |