14 April 1834 § 111. persons whose names shall be so drawn, and every of them, to come before our said court, P. L. 360. Ibid. § 120. per How several ve nires, received at the same time, to be executed. Ibid. § 121. One week courts to at the same time and place, to make up the juries requisite for the trial of all issues, which may be then there depending for trial in our said court, and that you, the said sheriff, have then 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.), &c., at, &c.(r) 42. It shall be lawful for the judges of the court of quarter sessions to award and issue one venire in the form aforesaid for the summoning and returning of petit jurors in the said court and in court of oyer and terminer and general jail delivery, to be holden by them at the same time; and if distinct writs of venire shall in such case be awarded, it shall be the duty of the said judges to order the sheriff and commissioners of the respective county to annex and return one and the same panel of jurors to each of the said writs. 43. The number of persons who shall be summoned and returned as aforesaid, to serve as petit jurors in any court of oyer and terminer, shall not be less than forty-eight, (s) nor more than eighty, and in any other court of criminal jurisdiction, not less than twenty-four, nor more than sixty. 44. Provided, That the justices of any county court of oyer and terminer may award a venire for such number of jurors only as may be required in the court of quarter sessions of the respective county, subject to be enlarged by an order of any two justices of the said court, to the sheriff and commissioners of such county, at any time before the return-day thereof, if emergencies shall require it. 45. The venires issuing as aforesaid from any court of quarter sessions of the peace of any county shall be made returnable into the same, on the first day of the said court. V. Of the execution of writs of venire. 46. In all cases where the number of jurors to be returned to any court shall not be precisely fixed by law, it shall be the duty of the respective court, by a standing order, or by orders made from time to time, to direct the number of jurors which shall be returned at each successive term of such court, subject nevertheless to be enlarged as aforesaid, by order of the judges of the same court, or of any two of them, in vacation, if emergencies shall require it. 47. Provided, That nothing in this act shall be construed to repeal or interfere with any special provisions heretofore made by law respecting jurors to be drawn, summoned and returned to serve at any court of any city or county of this commonwealth. 48. Whenever any writ of venire shall be delivered to any sheriff, he shall give immediate notice thereof to the commissioners of the respective county; and the said sheriff and at least two of the commissioners shall, without delay, draw from the proper wheel, after having turned the same sufficiently to intermix the papers deposited therein, the names of so many persons to be jurors as shall be required by such writ.(t) 49. If any of the persons whose names shall be drawn as aforesaid shall have removed from the county, or shall be dead or absent, the said sheriff and commissioners shall destroy the slips containing the names of persons so removed or dead, and proceed to draw other names, until the several panels shall be completed; and thereupon they shall lock and seal up, in the manner aforesaid, the said wheel. 50. Whenever writs of venire for a grand jury and petit jury in the court of quarter sessions, and also a writ of venire from the court of common pleas in any county, except the county of Philadelphia, shall be in the hands of the sheriff and commissioners at the same time for execution, the required number of names first drawn shall be annexed in a panel to the venire for a grand jury, and the required number of names next drawn shall be annexed in a panel to the venire for a petit jury in the court of quarter sessions, and thereupon the said sheriff and commissioners shall proceed to draw and annex the panel required, to be returned into the court of common pleas. 51. In every county wherein the terms of the courts of common pleas and quarter sessions of the peace are limited by law to one and the same week, the have but one panel. sheriff and commissioners of such county shall annex and return one and the same panel of names to the venires issuing as aforesaid, for the summoning and returning of petit and general jurors in the said courts. Ibid. § 122. 52. If thirty days shall not intervene between the time of depositing the names of jurors in the wheel or wheels as aforesaid, and the next court, in any county, When jurors to be the jurors shall be drawn as aforesaid, for such court, from the names deposited in the wheel for the preceding year. drawn from wheel of preceding year. (r) See White v. Commonwealth, 6 Binn. 179. (s) It is no cause of challenge to the array, that but forty-eight jurors were summoned, one of whom was not qualified to serve. Faust v. Commonwealth, 33 P. S. 338. (t) It must appear from the return, that the jurors were legally drawn. Eaton v. Commonwealth, 6 Binn. 447. 53. The commissioners of the several counties respectively shall make out, in 14 April 1834 § 128. alphabetical order, two lists of the names of the persons so drawn, to serve as P. L. 362. grand, petit or special jurors, and one of the said lists they shall deliver to the Commissioners to sheriff of the respective county, and the other to the prothonotary or clerk of the furnish lists of proper court, to be set up by them in their respective offices for the inspection of jurors to sheriff all persons concerned. VI. Of the summoning and attendance of jurors. and prothonotary. P. L. 364. 54. It shall be the duty of the sheriff to summon, at least ten days before the 14 April 1834 § 125. return-day of the venire, the persons whose attendance shall be thereby required, by delivering to each of the said persons a separate ticket, in the customary form, When and how specifying the duty enjoined, or by leaving such ticket at their usual places of jurors to be sumabode, respectively.(u) 55. It shall not be lawful for the sheriff and commissioners of any county, to return or put into the wheels aforesaid, or any of them, the name of any person privileged or exempted from serving upon juries as aforesaid. moned. Ibid. § 126. Names of exempts not to be put in the wheels. Ibid. § 127. names of jurors attendance. Ibid. § 128. Prothonotaries to certify the names 56. The sheriff of each county shall enter, in alphabetical order, in a book to be kept by him for that purpose, the surnames of all persons, together with their Christian names and additions, who shall be summoned by him, or by any officer Sheriff to enter or other person legally authorized for the purpose, and who shall duly attend and summoned, with serve upon any jury in any of the said courts, and also the times of their services the time of their respectively, and said book shall be delivered by him to his successor in office. 57. The prothonotaries and clerks of the several courts aforesaid, shall respectively certify to the sheriff and commissioners of the respective county, at the end of each term or session of the respective courts, the names of the jurors who shall have appeared and served at such court, also the names of those who shall have made default or were excused from serving as jurors at that term, and also the names of those who were privileged or exempted from serving on juries. 58. Every person who shall be summoned, or who shall serve upon a jury as aforesaid, shall be entitled to demand and receive from the sheriff, without fee or reward, a certificate, testifying his attendance and service, and the time thereof, as tificate of attendaforesaid. of attending, defaulting and ex cused jurors, and Sheriff to give cer ance without fee. Ibid. § 180. 59. The prothonotaries and clerks of the several courts of the commonwealth, shall, without fee or reward, certify to the commissioners of the respective county, Prothonotary to the number of days each person shall have served or attended as aforesaid, either as grand, petit or general juror, at the respective court. certify attendance of jurors without fee. Ibid. § 184. ing jurors. 60. Every person selected and summoned as aforesaid, who shall, after being called three times in open court, fail to appear at the time and place appointed, shall, upon due proof of lawful summons, forfeit and pay for every such default to Penalty on defaultthe respective county, to be appropriated towards a fund for defraying the expenses of jurors, a sum not exceeding thirty dollars, at the discretion of the court at which his attendance shall be required: Provided, That the said court shall remit any fine which may be so imposed by them, at the same or the next succeeding term thereof, if reasonable cause for the absence of such person shall be shown. Ibid. § 185. 61. The name of every person selected, drawn, summoned and making default as aforesaid, also the name of every person who shall be excused from serving, Names of defaultshall be returned by the sheriff and commissioners to the wheel from which it ing and excused was taken, at the time of the next drawing from the said wheel for any of the jurors to be recourts of such county: Provided, Such person is resident within the respective turned county, and competent and liable to perform the duties of a juror. turned to the 62. It shall not be lawful to return to the wheel or to any of them (if there be Ibid. § 186. several), the name of any person who may have served as a juror during the year Jurors to be liable in which such service shall be rendered, nor shall it be lawful to put the name of to serve but once the same person, during the same year, into two or more different wheels contain- in a year. ing the names of jurors for the courts of the respective county; and every sheriff Penalty for placing and every commissioner who shall intentionally offend herein, or shall consent in the wheel the thereto, shall forfeit and pay to the respective county, for the use of the fund names of such peraforesaid, a sum not less than ten dollars nor more than thirty dollars, at the discretion of the court of quarter sessions of the peace for the respective county. VII. Of the impannelling of juries. sons. P. L. 366. 63. On the return of any venire issued as aforesaid, the prothonotary or clerk of 14 April 1884 § 189. the respective court shall cause the names of the jurors impannelled and summoned as aforesaid, to be written separately, on distinct slips or pieces of paper, Names of jurors to as nearly alike in size and appearance as may be: he shall, by direction and under be written on slips, notice of the judge presiding, roll or fold up the said slips separately, and as nearly box. in the same manner as may be, and put them in a box to be provided by him for that purpose. 64. When any cause shall be ready for trial, some disinterested person shall, by folded and put in a 23 June 1885. P. L. 188. (u) If a juror attend, in pursuance of notice, it is immaterial in what manner he was summoned. Commonwealth v. Salter, 2 Pears. 461. 23 June 1885. P. L. 188. be drawn. direction of the court, in open court draw from the said box, after having well mixed the papers deposited therein as aforesaid, twenty of said papers one after Twenty names to another; and if any of the jurors whose names shall be so drawn shall not appear, or shall be challenged and set aside for cause, such person shall proceed to draw as aforesaid a further number of the said papers, until twenty jurors shall appear, the names of which said twenty jurors shall be written in a panel by the prothonotary or clerk, from which the plaintiff shall strike one name and the defendant one, and so on alternately, until each party shall have exercised the four peremptory challenges allowed by law, and the remaining twelve jurors, having been sworn or affirmed as the law directs, shall be the jury to try such cause. Plaintiff and defendant shall strike one alternately. Remaining twelve to be jurors. Ibid. When prothono 65. In case either party shall neglect, or refuse to aid in striking the jury as aforesaid, the prothonotary or clerk shall strike the same on behalf of such party: And provided further, That whenever the first twelve jurors appearing in answer When twelve suffi- to the call of their names as aforesaid are satisfactory to the parties, the calling of further jurors may be dispensed with.(v) tary to strike. cient. 14 April 1834 § 141. P. L. 366. Oath of jurors. Ibid. § 142. Names of jurors they are dis 66. The oath or affirmation to be administered to jurors impannelled in any cause as aforesaid, shall be in the following form, to wit: You, and each of you, do [swear or affirm] that you will well and truly try the issue joined between C. D., plaintiff, and E. F., defendant, and a true verdict give, according to the evidence, unless dismissed by the court or the cause be withdrawn by the parties. So, &c. 67. The names of the jurors drawn and sworn or affirmed, in any cause as aforesaid, shall be written on a panel, and the slips or papers which bear those names shall drawn to be writ-be kept apart by themselves in some other box, to be provided as aforesaid and kept ten on a panel and for that purpose, until such jury shall give in their verdict and the same be recorded, kept apart, until or until the said jury shall, by consent of the parties or by the order of the court, be discharged from the cause; (w) and thereupon the names of the said jurors shall be again rolled up as aforesaid, and returned to the box first above mentioned, and turned to the box. mingled with the names of the jurors remaining at that time undrawn; and the like proceedings in all respects shall be had, so often as any cause shall be called on for trial, during the holding of the court. charged. Then to be re Ibid. § 143. How second or other juries may be impannelled. Ibid. § 144. How tales may be moned. 68. If a second or any subsequent cause shall be called for trial, before the jury charged as aforesaid with the first or any former cause shall have given in their verdict, or shall be otherwise discharged, it shall be lawful for the court to proceed as aforesaid to impannel a jury in such second or subsequent cause, of the jurors remaining, for the trial thereof, and so in like manner as long as any of the jurors aforesaid shall remain. 69. If a sufficient number of the persons summoned and returned as aforesaid, shall not appear as required, or if, by reason of challenges or otherwise, there shall awarded and sum- not be a sufficient number of jurors present, competent for the trial of any cause which shall be called for trial, the sheriff or coroner, or if the case require it,(x) two citizens to be appointed by the court for that purpose, shall, upon the order of the court, immediately summon and return from the bystanders, (y) or from the county at large, so many qualified and competent persons as shall be necessary to fill up the jury for the trial of such cause.(z) Ibid. § 145. 70. If any person summoned and returned from the bystanders, or from the county at large, as aforesaid, shall refuse or neglect, without reasonable excuse, to Penalty for refusal attend and serve as aforesaid, at such court, he shall be liable to the penalties provided in the case of other jurors summoned and making default of appearance; and such penalty shall be levied and collected in like manner and paid for the 71. Whenever a challenge to the array of jurors, summoned and returned as aforesaid, shall be made by either party to a cause, and sustained by the court, so that there shall be no jury present, legally qualified to try the same, the court shall have power, at the instance of either party, to award a venire, returnable forthwith for the trial thereof. 72. Every venire awarded as aforesaid, shall be directed to the sheriff or coroner of the respective county, or, if the case require it, to two elisors; it shall require him or them to summon and return forthwith, twenty-four good and lawful men to be jurors in such case, and upon the return thereof, with a panel of jurors annexed, the trial shall proceed, in like manner and with like effect as if the jurors had been selected and summoned as aforesaid. (v) This is an amendment of the act 14 April 1834, § 140, P. L. 366. This act does not apply to criminal cases. Commonwealth v. Spink, 27 W. N. C. 37. In re Calling Jurors, 1 C. C. 644; overruling Commonwealth v. Curling, 1 C. C. 413. Commonwealth v. Todd, Ibid. 416. It does not take away the commonwealth's right to stand aside jurors. Commonwealth v. Curling, 1 C. C. 413. (w) When a juror, after being sworn, fails to appear, the court should either compel his attendance, or dismiss the jury, and impannel another to try the cause. Pennell v. Percival, 13 P. S. 197. 73. The courts aforesaid, having jurisdiction of any criminal cause, shall respec- 14 April 1834 § 148. tively have the like power, whenever a challenge to the array shall be made by the P. L. 366. defendant, and sustained by such court, so that no jury shall be present, legally Criminal courts to qualified as aforesaid to try such cause: Provided, That in case such defendant shall have the same be allowed by law to make twenty peremptory challenges, the number of jurors power to award returnable upon such writ shall be thirty-six. 74. No alien shall, in any civil or criminal case whatever, be entitled to a jury de medietate linguæ, or party of strangers. VIII. Of challenges. (a) special venire. Ibid. § 149. Jury de medietate linguæ not to be allowed. 75. On the trial(b) of all civil suits now pending, or hereafter brought in any 29 March 1860 § 1. of the courts of this commonwealth, the plaintiff and defendant shall each have four peremptory challenges.(c) P. L. 844. Challenges. 14 April 1834 § 151. P. L. 368. Liability to taxes not to disqualify jurors. 76. No person shall be deemed incompetent to serve as a juror, in any suit or prosecution upon any official bond or forfeited recognizance, or upon any penal act of assembly, by reason of his being subject to any tax which would be diminished by the recovery which may be had in such case. 77. No person shall be excluded from being a*** juror in any suit, prosecu- 16 April 1840 § 6. tion or proceeding in which any county, city, incorporated district, borough or township is a party, or is interested by reason of such person being, or having been officers and tax an officer, rated citizen or inhabitant in such county, city, district, borough or payers or municipalities. township, or owning assessed or taxable property, or being liable to the assessment or payment of any tax therein. P. L. 411. P. L. 79. 78. When a challenge, for a cause assigned, shall be made in any civil proceed- 5 June 1883 § 1. ing, the truth of such cause or challenge shall be inquired of, and determined by the court.(d) IX. Of special juries. 79. When a rule shall be entered, in a civil action depending in any court, for 14 April 1884 § 157. striking a special jury, (e) the parties in any such action shall strike the same in P. L. 368. the office of the prothonotary or clerk of the respective court, from the list of How special juries jurors which shall have been drawn from the proper wheel, as aforesaid, for the to be struck. ensuing court. 80. No rule on the defendant's application for a trial by special jury in the 27 March 1789 § 8. supreme court, or at nisi prius, of any issue in any of the said civil actions, except 2 Sm. 484. in cases where the title to real estate shall be in question, shall hereafter be when special jury granted, unless the defendant, or some person for him, shall previously make and to be allowed in file an affidavit in the said court, that he conceives there is a just and legal cause the supreme court. of defence against the plaintiff's demand in the said action, or against some part thereof. X. Of viewers. P. L. 363. is allowed. 81. Whenever a view shall be allowed in any cause, (g) and a jury shall be 14 April 1884 § 124. struck from the list of persons drawn as aforesaid, it shall be the duty of the prothonotary or clerk to issue, upon the precept of either party, a special writ of Special venire to venire, containing the names of such jury. And he shall add thereto a clause, issue, when view commanding the said sheriff to cause the said jurors, or six of the first twelve of them, to view the place to which the controversy between the said parties may relate, at some convenient time before the trial, according to the manner hitherto practised and allowed in such cases in this commonwealth. 82. When a view shall be allowed in any cause, six of the first twelve of the jurors named in the panel, or more of them, shall be taken by the sheriff, or other officer, to the place in question, and they shall have view thereof. 83. At the calling of a jury to try any cause in which a view shall have been (a) If the mode of alternate challenges be adopted, it must be pursued to the end. Patton's Administrators v. Ash, 7 S. & R. 116. Kennedy v. Dale, 4 W. & S. 176. Therefore, if plaintiff challenge, and then defendant challenge, and then plaintiff waive a challenge, he cannot resume his right, after defendant's second challenge. Patton's Administrators v. Ash, 7 S. & R. 116; Wenrick v. Hall, 11 Ibid. 153; except as to the juror last called. Kennedy v. Dale, 4 W. & S. 176. Hotz v. Hotz, 2 Ash. 245. If a juror be liable to challenge, by reason of having sat in a former trial of the same cause, it cannot be taken advantage of, after the party has taken his chance of a verdict. Eakman v. Sheaffer, 48 P. S. 176. The parties are allowed, under this act, and the practice of the state, to challenge perempto rily, four of a struck jury. McDermot v. Hoffman, 70 P. S. 31. (b) This does not extend to viewers. Shwenk v. I'msted, 6 S. & R. 351. Schuylkill Navigation Co. v. Farr, 4 W. & S. 362. Ibid. § 156. How view to be conducted. Ibid. § 159. (e) See tit. "Criminal Procedure," as to challenges, in criminal cases. (d) See Wirebach v. Bank of Easton, 97 P. S. 543. (e) The act of 19 March 1785, § 17, provides, "that it shall and may be lawful for any plaintiff or plaintiffs, defendant or defendants, in any civil action, or cause depending in any court, to enter a rule for a special jury, to be struck before the prothonotary or clerk of such court, for the trial of any issue joined in such action or cause, and triable by a jury of twelve men, in such manner as special juries have heretofore been struck." 2 Dall. L. 267. A party may apply for a special jury, at any time. Neff v. Neff, 1 Binn. 350. It is not necessary that a special venire should have issued for a struck jury. Mc Dermot v. Hoffman, 70 P. S. 31. (7) It is too late to move for a view, during the week in which the cause is fixed for trial. Bare v. Hoffman, 79 P. S. 71. P. L. 363. 14 April 1834 § 159. had, those of the viewers who shall appear shall first be sworn or affirmed, and so many jurors only shall be drawn as aforesaid, and added to the said viewers, as Viewers to be first shall, after default and challenges allowed, make up the number twelve, to be called on the jury. sworn or affirmed for the trial of such cause. XI. General provisions. 14 April 1834 § 160. Jurors to be exam- When coroner to 84. Every juror impannelled in any cause, who shall know anything relative to the matter in controversy in such cause, shall disclose the same in open court, before the jury shall retire to consider their verdict. 85. The several duties hereby enjoined upon the sheriffs of the several counties, relative to the selecting, summoning and returning of jurors as aforesaid, shall, in case of the death, resignation, removal from office, inability or incompetency of any sheriff to act, be performed by the coroner of the respective county, and the coroner performing such duties shall be subject to all and singular the provisions herein enacted in relation to the sheriffs; and in case of death, resignation, removal from &c., of sheriff and office, inability or incompetency of the sheriff and coroner to act, by a disinterested person to be appointed for that purpose by the court, or by two of the judges of the court of common pleas of the respective county. In case of death, coroner, court to appoint a person. Ibid. § 132. Coroner to act where sheriff is incompetent. 21 Feb. 1814 § 1. 6 Sm. 111. Verdict not to be set aside for defect of jury process. Pleading general issue to be a waiver. 31 March 1843 § 6. P. L. 123. issue writs of 86. Whenever the sheriff of any county shall be incompetent to perform, in any case which may be depending and for trial by jury, as aforesaid, the duties hereby enjoined, the coroner of such county, being otherwise competent, shall have power, concurrently with the commissioners thereof, to execute the writ of venire for the grand jury in manner aforesaid. 87. No verdict hereafter given in any court, civil or criminal, (h) in this commonwealth shall be set aside, nor shall any judgment in any court be arrested or reversed, nor sentence stayed, for any defect or error in the precept issued for any court, or in the venire issued for summoning and returning of jurors, or for any defect or error in drawing, summoning or returning any juror or panel of jurors;(i) but a trial, or an agreement to try on the merits, or pleading guilty, or the general issue,(k) in any case, shall be a waiver of all errors and defects in, or relative and appertaining to the said precept, venire, drawing, summoning and returning of jurors.(1) XII. Special provisions relating to Philadelphia.(m) 88. It shall be lawful for the court having criminal jurisdiction for the trial of all indictments in the city and county of Philadelphia, to issue writs of venire Criminal court to facias for the drawing, summoning and returning of grand and petit jurors, for the criminal courts, [and the panel for petit jurors shall hereafter be drawn from the same wheel from which the jurors in civil cases now or hereafter may be drawn] (n) and the proper officers shall at all times have said wheel supplied with a sufficient number of names of competent jurors for that purpose. venire. 8 Feb. 1848 § 3. P. L. 25. Two or more venires may be issued for same term. But not for less than two weeks. 13 April 1859 § 1. P. L. 595. 89. Said court shall have power and authority to issue two or more venires, for the drawing, summoning and returning of jurors to serve as petit jurors, at any term of said court, to be drawn, summoned and returned as now required by existing laws, and to fix the same number for each panel as now designed by law: Provided, That no venire shall be issued for the return of a panel of jurors to serve for a period less than two weeks, except in cases of special venires, when a panel is exhausted by challenges, as now directed by law. 90. It shall be the duty of the several assessors of the city of Philadelphia to ascertain, by strict inquiry, the proper orthography of the name of each taxable Duty of assessors person within his ward, the exact number of his place of residence, together with his present occupation, profession or business, and to state, plainly written, all such particulars in his assessment list. in Philadelphia. 20 April 1858 § 1. P. L. 354. Board for drawing and selecting jurors in Philadelphia. Ibid. § 2. 91. The judges of the supreme court when sitting in the city of Philadelphia, of the district court and court of common pleas of the city of Philadelphia, with the sheriff thereof, shall constitute a board for superintending and managing the drawing and selecting jurors, to serve in the several courts of the said city: one member of any two of the said courts, (o) with the said sheriff or his duly authorized deputy, shall be a quorum of said board for the transaction of business. 92. Prior to the first day of December in each and every year,(p) the receiver of (h) It extends to criminal cases. Dyott v. Commonwealth, 5 Wh. 67. And to actions of partition. Dewar v. Spence, 2 Wh. 211. It is re-enacted, as to criminal cases, by act 31 March 1860, § 53. P. L. 443. (i) See Commonwealth v. Smith, 2 S. & R. 300. Commonwealth v. Sallager, 3 Clark 127. (k) If the prisoner stand mute, and the plea of not guilty be entered by the court, it is within the act. Dyott v. Commonwealth, 5 Wh. 67. See Commonwealth v. Chauncey, 2 Ash. 90. () If a person, not on the panel, be called, and permitted to sit, the irregularity is cured by this act. Burton v. Ehrlich, 15 P. S. 236. Jewell v. Common wealth, 22 Ibid. 94. Fife v. Commonwealth, 29 Ibid. 429. But if a stranger answer to the name of one of the panel, and be sworn as a juror, it is a mistrial, and not within the statute. Commonwealth v. Spring, 5 Clark 238. See Commonwealth v. Sallager, 3 Ibid. 127. (m) See act 27 March 1865, as to Somerset, Bedford, Fulton, Westmoreland, Perry and Juniata counties. P. L. 779. (n) See infra 93-4. (p) Prior to the 10 November, by act 13 April 1859, § 2. P. L. 595. |