Munshower v. State

Robinson, J., delivered the opinion of the Court. The plaintiff in error was indicted for murder, and upon his trial hy a jury, was found guilty of murder in the first degree. The record comes into this Court hy petition, as upon writ of error, designating the points or questio.ns of law, hy the decision of which he alleges that he was aggrieved. In the first place, it appears that after the regular panel of jurors had been exhausted, the Court, in pursu- ' anee of the Act of 1861, ch. 329, directed that forty tales-men should be drawn from the jury-box then in Court, and among the talesmen thus drawn, was the name of Joseph H. Brown.

It also appears by the record, “that from the said tales-men summoned and returned to said Court by said sheriff, others of said jury were sworn as follows, to wit,” among others, “Joseph B. Brown.” In support of the motion in arrest of judgment, it is insisted that Joseph B. Brown was not qualified to sit as a juror, because he was not drawn as a talesman from the box; and that the verdict was therefore rendered by eleven jurors. It was the duty of the Court to ascertain whether the persons offering to be sworn upon the panel, were the persons named in the venire, or strangers. And it appears from the record that the motion in arrest of judgment, was overruled, because the Joseph H. Brown, whose name was drawn from the box, and inserted in the venire, was the same person designated on the panel as Joseph B. Brown, and that Joseph B. Brown was the person intended by the Court when the name of Joseph H. Brown, was selected and placed in the box. In this State, it is the duty of the Judges to select jurors, and their names are put in a box, from whence they are drawn by the clerk, in the presence of the Judge; and it appears from the record, that the Court found as ⁵¹⁷ matter of fact, that Joseph H. Brown, who was selected hy the Court as a juror, and whose name was drawn as a talesman, and Joseph B. Brown, who was summoned by the sheriff, and sworn as a juror, were one and the same person.

This is not then a case in which one person personates another, or in which the juror sworn is a different person from the one selected and summoned. How far an error in this respect would be fatal, it is not necessary now to determine. It is sufficient to say, that we have not been able to find a case in which it has been held that a mere mistake in the middle name of a juror, is ground to arrest the judgment, where it appeared there was no mistake as to the identity of the person. On the contrary, in The Case of a Juryman, 12 East, 231, it was held that a mistake in the Christian name of a juror, was not a fatal error. .

There it appeared, that Robert Curry, who served upon the jury, had answered to the name of Joseph Curry, and was sworn by that name. Upon inquiry, it was found that there was a person of the name of Joseph