By the Court,
Suthekland, J.The revised statutes provide that a jury for the trial of an indictment shall be drawn in the same manner as is prescribed by law for the trial of issues of fact in civil cases, 2 R. S. 734, § 5; and in civil cases, where there is not a jury already empanneled in another cause, the statute directs “ that the ballots containing all the *422names of all the jurors returned and appearing at each court, sh'aii he placed together in the same box, before any jury shall drawn therefrom2 R. S. 421, § 64. Here the ballot con.
We have several times had occasion to consider the effect of an omission on the part of the officer, whose duty it is to draw and empannel jurors, to conform to the precise regulations prescribed by law in that respect; and we have uniformly held that this statute, like many others of a similar character, is to be considered as directory to the officers merely, and that a neglect to conform to its provisions- will not, per se, be a sufficient ground for setting aside the verdict of such jury, where the court see that the party cannot have been prejudiced by it. 5 Cowen, 289. 7 id. 232.
The 59th section of the same act, 2 R. S. 420, provides that the clerk of the court shall cause the names of the several persons returned as jurors by the sheriff, with their respective additions and places of residence, to be written on several and distinct pieces of paper, and shall roll up and fold such pieces of paper, each in the same manner as near as may be, and so as to resemble, each other as much as possible, and so that the names written thereon shall not be visible. In Cole v. Perry, 6 Cowen, 584, a motion was made to set aside a verdict, on the ground that the ballots, containing the names of the jurors were not folded at all, but were put open into the box, in such manner that the names might easily have been seen by the person drawing them. On the other hand, the affidavit of the clerk who drew the jury was produced, stating distinctly that he did not see the names of the jury until after they were drawn. The motion was denied, on the ground that the statute was directory merely to the officer drawing the ballots, and that the mistake of the officer in the discharge of his duty was not a ground for setting aside the proceedings, where no injury to the party complaining was shewn or pretended. The principle of this case is believed to be fully sanctioned by a great variety of decisions in our own, and the English courts.
*423It is an established principle of the common law, in relation to the trial by jury, that after the jurors are once empanneled, they have no right to disperse, or take refreshments, without the leave of the court; and if they do, they may be punished as for a misdemeanor or contempt. 3 Black. Comm. 375. But it has been held in a variety of cases that the mere separation of the jury, though against the express directions of the court, and in violation of their duty, will not of itself be a sufficient cause for setting aside the verdict. In Smith v. Thompson, 1 Cowen, 221, two of the jurors, after they had retired to consider of their verdict under the charge of a constable, eluded the officer and left the jury room; the one went to his own house, the other to a tavern, both took supper and remained all night. They joined their fellows, however, in the morning, and the whole went into court t ogether, and finally rendered a verdict for the plaintiff. The court refused to set aside the verdict, on the ground that there was no reason" to believe that the verdict had been affected by the circumstance of their separation, although their conduct was conceded to have been irregular and improper. It was there remarked that the ancient strictness in relation to the conduct of jurors had been in modern times essentially relaxed ; and the truth of that observation, as well as the correctness of the decision, are abundantly supported by the authorities collected in the learned note of the reporter to that case. The same decisions, under circumstances essentially similar, were made in Hornton v. Hornton, 2 Cowen, 589, and Ex parte Hill, 3 id. 355, and 3 Johns. R. 252.
That the doctrine upon this subject is the same in criminal, and even capital cases as in civil is clearly settled. The case of The People v. Douglass, 4 Cowen, 26, was a conviction for murder. During the trial, the jury had leave to retire from the box under the charge of two sworn constables, and the direction of the court to keep together, and return speedily into court. Two of the jurors separated from their fellows, drank whiskey, took other refreshments, and conversed with the bystanders on the subject of the trial. Upon an application for a new trial for this misconduct of the jury, each of the judges expressed a decided opinion that a mere separation of the jury, though in violation of their duty, and against the ex*424press directions of the court, and although in a capital case, wou]¿ not 0f itself be a sufficient cause for setting aside the verdict, nor would the mere fact of eating vitiate the verdict; but the court were unanimous in the opinion that the drinlt- ... .... ... , , mg oí ardent spirits, though not to an extent which produced intoxication, was a gross and fatal irregularity, and that its tendency to abuse was so strong and inevitable, that they would not inquire whether injury had actually resulted from it; they would hold it a conclusion of law, not to be rebutted, that its effect had been .injurious, and on that ground principally a new trial was granted. The case of The King v. Woolf Kinnear and others, 1 Chitty’s R. 401, fully sustains the general principal maintained in the cases already referred to. That was an indictment for a conspiracy, and the jury, during the interval of an adjournment, were permitted by the judge to retire to their respective homes, and a new trial was moved for on that ground. All the judges held that it was immaterial, as it regarded that motion, whether the separation of the jury was with or without the consent of the court; only in the latter case it would be a misdemeanor in the jury, while in the former it would not; and Abbott, Ch. J. says: “ Though it may be a misdemeanor in them to separate without the consent of the judge, it will not avoid the verdictand each of the other judges expressed the same opinion.
The conclusion from these cases appears to me to be this: that any mere informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not, or could not have sustained any injury from it.
In Hill v. Yates, 12 East, 229, the court of king’s bench refused to set aside a verdict in a civil cause, where the son of one of the jurymen answered to the name of his father, when called on the panel, and actually served as one of the jury, in lieu of his father, though he had never been summoned. I must confess that that case carries the doctrine to an extent which I should be unwilling to go. It appears to me to have been the verdict of but 11 men; the 12th man was no juror; he was not upon the panel; he was not the man intended to *425be summoned, nor was he even in fact summoned.. Lord Ellen-borough put it upon the ground, that it was a matter within the discretion of the court, to grant or refuse a new trial, in such a case ; and that as no injustice was pretended to have been done, the court would not interfere in this manner, but leave the party to get rid of the verdict in some other way, if he could. He also observed, if they were to listen to such an objection, they might set aside half the verdicts given at every assizes, where the same thing might happen from accident, or inadvertence, and possibly sometimes from design, especially in criminal cases. This case marks, emphatically, the strong reluctance of that court to interfere with the verdict of a jury upon any objection of form, not affecting the substantial merits of the case. With great deference and respect, however, I must say, that I think the court in that case pushed the principle to a dangerous extent. The case upon which they mainly relied, differed from it most essentially. It is stated in a note, page 230. That was the case of one Robert Curry, who answered to the name of Joseph Curry, in the plaintiff’s panel, and was sworn and served by that name* Robert, however, was the man actually summoned by the bailiff, and was qualified to serve as a juror.- The court held that this was a mere misnomer in the panel of the jurymen, and was but cause of challenge, which, on being stated, would have been instantly remedied, by altering the panel, and refused to interfere, on the ground of irregularity, although it was a case of conviction for a capital felony. There the juryman who served was the man who was intended to be summoned, and who was actually summoned; and the mistake was simply in his Christian name, as put on the panel. The case of Wray v. Hearn & Hancock, Willes, 488, was also a case of misnomer merely. One of the jurors was named Henry in the venire, the habeas corpora, and X\iq postea, whereas his real Christian name was Harry. He was, however, the man intended, and was a competent juror ; and the court refused to set aside the verdict. But the case of Norman v. Beamont, Willes, 484, was, in its circumstances, precisely like the case of Hill v. Yates, 12 East; one of the jurymen was not returned on the nisi prius panel, but answered to the name of a per*426son who was, and the verdict was set aside on that ground. g0¡ a]s0; ¡n recent case of The King v. Tremain, 7 Dowl. & Ryl. 684, a son personated his father, as a juror, and joined *n a verc^ct g™Ry against a person indicted for perjury. The son was under age, and was not qualified by property to serve as a juror. It was held that this was a mistrial, and a new trial was granted. The judges all attach great importance to the circumstance, that the intruding juryman had not the legal qualifications of a juror. They consider it as the verdict of only 11 jurors, on that ground. But it is evident that the decision in Hill v. Yates, did not meet their approbation. Dewey v. Hobson, 6 Taunt, 460, was precisely like the case of Hill v. Yates; a man not summoned answered to the name, and served in the place of one of the jurors summoned. The fact was discovered before the verdict, and the plaintiff, notwithstanding, insisted upon retaining the juror, and a verdict was rendered in his favor. The verdict was set aside; and the court endeavor to distinguish it from Hill v. Yates, on the ground that the plaintiff was apprized that he took the verdict at his peril. But it is apparent that they did not approve of the decision in that case.
The case of The King v. Hunt, 4 Barn. & Ald. 430, bears a strong analogy to the case at bar. That was the case of an information for a libel before a special jury; only 10 of the special jury attended, and two talesmen were sworn, and the defendant was convicted. He moved for a new trial, on the ground that the oificer had omitted to summon the two special jurymen, who had not attended; and it was contended that it was absolutely necessary that all should be summoned ; that the act of parliament was imperative, for it required all to be summoned ; and if two might be omitted, so might any other number. But the court unanimously refused the motion, saying that it would be an alarming principle to establish, that a verdict could be set aside, because the sheriff had omitted to summon one juryman out of the whole panel; that applications of this sort were addressed to the discretion of the court; that if the officer had not done his duty, he might be punished for it; and if his omission has actually produced prejudice to the party, then the court in its discretion, might prevent *427injustice being done, by granting a new trial. In that case the omission had not been shewn to have been prejudicial to the defendant, and therefore the motion was refused. This, I apprehend, is the true rule to be collected from all the cases.
The cases of Cooper v. Bissell, 16 Johns. R. 146, and The People v. McKay, 18 Johns. R. 212, have no bearing upon this; in both those cases, the error complained of appeared on the face of the record ; and where that is the case, unless it is cured by the statute of jeofails, it is always fatal. In the first case, the record stated that the coroner of the county of Oneida returned the venire; without any award of the venire to the coroner, or any suggestion of special facts to authorise such award, it of course did not appear that the coroner had any authority to execute the process, and the verdict and judgment were on that ground clearly erroneous. In The People v. McKay, the defendant was tried for murder, and convicted. He was brought into this court by habeas corpus, and the indictment and proceedings against him in the court of oyer and terminer were also returned, in obedience to a certiorari, directed for that purpose. Upon the papers thus before the court, the counsel for the prisoner moved in arrest of judgment, on the ground that no venire had been issued to summon the petit jury; and it appeared that the venire issued was not under the seal of the court, and that no official return had been made to it by the sheriff. It was admitted by the counsel for the people that the case stood precisely as though no venire had been issued, it having no seal, and therefore was absolutely void; but they contended that no venire was necessary. The only question then, was, whether the judgment could be sustained, when the record shewed that no venire had been issued. Judgé Spencer says : “ Inasmuch, then, as a venire was necessary at the common law, and as the statute yet requires it to be issued, the omission to issue it, we must consider an error apparent on the record; and in such a case, affecting life, we do not feel ourselves authorised to dispense with a process required by the common law, and also by the statute, although we may not be able to perceive much use in continuing it.” The decision proceeded on the ground that the error was apparent on the record, and the court could not disregard it. *428The case in 11 Johns. R. 532, was a certiorari case, and the judgment was reversed, on the ground that it did not appear from the return that a constable was sworn to attend the jury when they retired. These inferior justices’ courts derive all their powers from the statute by which they are created, and they must conform,' in all respects, to its requirements; no intendments are made in their favor, and the statute positively required that a constable should be sworn to attend the jury; the omission was therefore fatal.
The case at bar then resolves itself into the inquiry, whether the prisoner was, or could have been prejudiced by the manner in which the name of Smith was drawn as a juror. He Was a competent juror as to qualifications, and had been duly summoned. The objection to him rests solely on the ground that the ballot containing his name was not put into the box until all the others had been drawn out. This is accounted for in a rr inner which repels all suspicion of design or unfairness on the part of the officer who drew the jury. It will also be borne in mind that Smith was the 12th juryman, and that the prisoner had at that time three peremptory challenges left, and that if Smith had not been called and sworn, a tales-man must have been taken. The prisoner, therefore, had the absolute power of excluding Smith from the jury, or of saving his peremptory challenges, and objecting to him for cause. I can see no possible manner in which his rights could have been affected. It cannot be said that if Smith’s name had been drawn at an earlier period, the prisoner might have accepted him as a juror, and have excluded one of the other eleven; he is not permitted to say that there was any just ground of objection to those jurors. The supreme court of the United States, in The United States v. Marchant, 12 Wheat. 482, have well said, that the right of peremptory challenge is not of itself a right to select, but a right to reject jurors. It excludes from the panel those whom the prisoner objects to, until he has exhausted-his challenges, and leaves the residue to be drawn in the ordinary and established manner. What jurors, in particular, shall try the cause, depends upon the order in which they are called; and the result is a mere incident, following the challenges, and not the absolute selection of the prisoner, *429resulting from his power'of challenge. In considering whether the prisoner has been prejudiced by the course that was pursued, the circumstance may fairly be taken into consideration, that his counsel resisted the motion of the public prosecutor, to set aside the whole panel, and commence the drawing de novo. If this proposition had been acceded to, it certainly would have secured to him all the advantages which it is now contended he may have lost. Whatever irregularity, therefore, there may have been in this case, it is most evident that it has not affected, or prejudiced in any manner the rights of the prisoner, and that he is not, according to the best establishlished principles, entitled to a new trial.
It may admit of some question whether the objection taken at the trial can be considered strictly in the nature of a challenge for cause. The objection was made to the decision of the court, that the ballot should be put into the box; when it was drawn out, the juror was not objected to. In a case of life and death, however, the court would make the most liberal intendment, in order to give to the prisoner the benefit even of technical objections. Considering it as a formal challenge, we are of opinion that it was properly overruled.