ON SUGGESTION OF ERROR. We have carefully considered the suggestion of error herein filed, and have reached the conclusion that it should be overruled.
I think, however, that one paragraph of the opinion should be withdrawn, which paragraph reads as follows:
"And since the sheriff may lawfully do this, we can find no reason why the judge shall not so suggest to him or even direct him so to do, provided the judge do not name the talesmen to be selected by the sheriff. All this has *Page 362 so long been the practice in our state that it has become a part of our common law in that regard."
While the jury was being impaneled, the judge called some talesmen from the bystanders, and when these were insufficient, he directed the sheriff to go to Cohay and summon jurors, but no objection was made thereto, and the jury was accepted. It is true that on the following morning, after additional counsel had been employed, there was a motion to quash the jury, but that came too late.
The law confers upon the sheriff the duty to select jurors after the regular panel is exhausted, and the safe course is for the judge to allow the sheriff to perform his duty without direction from the court as to who shall be summoned, or where they shall be obtained. The judge has sufficient authority, under the power given him, to excuse any juror who, in his opinion, based upon reasonable grounds, cannot or will not try the case fairly.
Anderson, J., concurs.