The petition for rehearing is denied. In the petition two matters are pressed upon the attention of the court which merit consideration. *Page 557
1. It is argued, with much apparent earnestness, that because defendant had not exhausted all of her peremptory challenges at the time of her acceptance of the last juror and the impanelment of the jury, she should not be listened to in the appellate court where she urges the error of the trial judge in overruling her challenge to the panel because of the bias of the sheriff. No one versed in the law can question, or we think does seriously question, the grave error that was committed in overruling defendant's challenge to the panel and in proceeding with the selection of the jury from such venire. But it is said that as the authorities are abundant and the rule well settled to the effect that this court will not review the alleged improper ruling of the trial court upon a challenge interposed to anindividual juror, if it shall be made to appear that the jury was completed without the exhaustion by the defendant of all peremptory challenges, so the same rule should be applied to a case such as this, where the challenge is to the whole panel; and if it shall be made to appear, as here it does, that a jury was taken while defendant still had unused peremptory challenges in reserve, it should be held as a matter of law that the error of the trial court is conclusively presumed to have been without injury to the defendant. Or, wording it differently, we are asked to say to defendant's counsel: "If you had arbitrarily exhausted your peremptory challenges we would then, for the admittedly erroneous ruling of the trial court in denying your challenge to the panel, have granted your client a new trial. But because you did not thus exhaust your peremptory challenges, we will not consider your objection, and your client must hang." Quite obviously the sole result which could ensue from this would be the execution of this woman under a new ruling upon a question of law. And this ruling would serve only to hang the woman, since in every subsequent case, enlightened by the extraordinary view thus expressed, defendants would exhaust their peremptory challenges and so bring the matter before this court under circumstances which, as has been said, it is conceded would cause a reversal of the case. But the reason why this court refuses so to rule does not rest alone, nor even largely, upon the fact, grave though it be, that the ruling would be the death warrant of a woman who, if her lawyers could have seen into the workings of the mind of the appellate *Page 558 court, would easily and assuredly have prevented this result by exercising their peremptory challenges — the reason of this court's refusal is based upon the fact that there is no true, substantial analogy between the two classes of cases, and that therefore the application of the rule touching the challenge of an individual juror to the case of a challenge to a panel would be not only without reason in law, but against the reason of the law.
For where a venire has been regularly served by the proper officer, in contemplation of law a panel composed of qualified, dispassionate, fair-minded men is brought into court. If upon examination it shall prove that some one of those men is biased, the taint affects him alone. He may be disposed of by a peremptory challenge. The next juror or jurors called to the box are still presumed to be qualified men legally selected. Therefore if a defendant, while still having peremptory challenges in reserve, shall allow the jury to be completed and then on appeal complain that the court refused to excuse John Roe upon his challenge for bias, the complete answer is that the defendant had it in his power to have relieved himself of the obnoxious juror and refused to do so, and that he shall not therefore be heard to complain of an injury, the evil effects of which he was easily able to have avoided by the exercise of the power of peremptory challenge conferred upon him by law.
But how is it when a just challenge has been interposed to the array, to the whole panel, because of the interest or bias of the party summoning them? There is then before the court not the case of a single juror who may be proved to be disqualified, while his fellows stand qualified; but every man so summoned is obnoxious to the law and is in law a disqualified juror. The question is not then whether an individual juror has successfully passed an examination for actual bias upon voir dire, for if the summoning officer has been astute enough and wicked enough, he has procured evil-minded men who can and will do just this thing. But whether he does or does not, the law looks with abhorrence upon the possibility of this being done, and will not subject a defendant to the compulsion of selecting his jurors from men so summoned. In the one case the taint attaches to the individual juror only; in the other it attaches to the whole panel and procedure, and the legal vice is affixed to every juror summoned. What avail then for a *Page 559 defendant to exhaust his peremptory challenges, knowing, as he must, that he will still be compelled to select his jurymen from men who have been called in against him without warrant of law, and who, for aught that he can tell, may prove secretly more hostile than those who are then in the box? In the case of the challenge to the individual juror, the defendant is called upon to excuse him because of the assurance that the next man is qualified. In the case at bar each and every succeeding man is equally disqualified, and had this defendant exhausted her nine peremptory challenges she would still have been called upon to complete her jury from men all summoned with like illegality who might have been more obnoxious than were those that, under the compulsion of the court's erroneous ruling, she felt obliged to accept. Here then is the broad distinction in the two classes of cases, and here also is the reason why the law will not permit the inquiry to go further than a determination as to whether or not the panel was legally chosen. For, if it was illegally chosen and the defendant compelled, with or without the exhaustion of her peremptory challenges, to select a jury from such a panel, by no conceivable circumstances can such a defendant be said to have been accorded his constitutional right to a fair trial under the laws of his land.
The industry of the state's attorney has resulted in the discovery of but one case which even seemingly bears out his contention. If it fully bore out his contention it would suffice to say that it stands alone against the great weight of contrary adjudication. But it does not so stand. In the case to which we have referred the sheriff had been set aside as disqualified, notwithstanding which order he summoned the jury. The supreme court of Colorado declared that defendant's challenge to the panel should have been sustained for this, unless there had been a waiver of the error, and proceeded briefly to point out the circumstances which, in its view, constituted a waiver. As one of the facts and circumstances, it stated that the defendant did not exhaust his peremptory challenges. But the waiver was not founded upon this circumstance, but upon other facts set forth, to the effect that defendant's counsel expressly stated that the jurors included in the panel were not prejudiced, or illegally drawn or summoned in any other respect than for the reasons specified. Says the supreme court: *Page 560 "As defendant's counsel admits not only the personal qualifications of the jurors, but that as jurors in all respects they are unobjectionable, it would be idle to quash the panel when no possible injury could result to the defendant from selecting a jury therefrom." (Boykin v. People, 22 Colo. 496, [45 P. 419].) We are not concerned with the soundness of the Colorado court's ruling to the effect that the facts which it presents did constitute a waiver. The one matter which it is desired to point out is that the waiver which the court found did not rest upon a failure of the defendant to exhaust his challenges. None of the cases cited by the Colorado court has any bearing upon the question, and the case itself contains no discussion of the proposition here presented.
2. In the concurring opinion of the chief justice, which is hereby adopted, it is pointed out that it is the duty of the trial court to determine whether the summoning officer is qualified or not before ordering the special venire to issue to him. Objection is made that the court is helpless in this regard and has not the power to proceed in the manner indicated. It is said that only when the sheriff and coroner are parties, or when either is a party in a proceeding against the other, or when either of these officers is a party and there is a vacancy in the office of the other, can the court proceed of its own motion, but that in every other case it can proceed only upon a challenge for disqualification supported by affidavit. The restriction thus sought to be imposed upon the general powers of a court of record narrows those powers to the point of absurdity. It would mean that if the judge actually knew that the sheriff was disqualified by consanguinity or interest, he would be compelled to remain silent, issue to him a venire which he knew was to be illegally served, and await the action of somebody before he was able to correct the error. No such shackles as these embarrass a judge in the performance of this duty. It is true that the power of a judge to appoint an elisor is not unlimited and unqualified, but it is equally true that it is his duty to do so in a proper case, and that case may as well be made upon the judge's own initiative as upon that of a party litigant. It is competent and proper for him, with the parties before the court, to interrogate the summoning officer, sheriff, or coroner, to call upon the prosecution or defense so to do, to the end that he may learn at the outset *Page 561 whether that officer is qualified, and if he be not, then to avoid the unnecessary delay and expense which would be imposed upon the state and upon litigants by placing the venire in disqualified hands.