ON PETITION EOR REHEARING.
Per Curiam.The only matter presented by the petition for rehearing requiring a further opinion is the challenge to the array. This we might, perhaps, decline to *463consider under the salutary rule announced in Knoth v. Barclay, 8 Colo. 305; but the great importance of the issue in this case leads us to examine the statute now cited by counsel for defendant in support of his challenge. The particular section relied on reads as follows :
“ If at any time the number of ballots in the box shall be reduced to fifty or less, in counties of the first class, and to twenty-five or less in counties of the second, third or fourth class, the judge of the district court may, in his discretion, direct the, clerk of said court to certify such fact to the clerk of the board of county commissioners, whereupon it shall be the duty of said clerk to immediately notify each of the county commissioners, and the said commissioners shall forthwith meet, and proceed to select such a number of jurors, as may be designated in the order of the said district judge, and the clerk of said board shall immediately certify to the clerk of said district court, the names of such jurors so drawn; and the clerk of the district court shall place such names in the box ready to be used as occasion may require. Whenever it shall be necessary to bring in a new panel of jurors, the court shall direct that they be drawn from said box. Whenever it shall be necessary to summon talesmen, the court, in, its discretion, shall direct that they be drawn from said box, or summoned from the bystanders, crowded that either party may show cause, why talesmen should not be summoned from the bystanders, or may issue an open venire as heretofore practiced; and, in every* case, the venire facias shall be returnable as the court shall direct, provided it shall be ground for challenge to any person so summoned from the bystanders on an open venire, if he shall have served as a juror either in a regular panel or as a talesman in any court of record within one year then last past.” See Session Laws 1891, pp. 250, 251, amending chap. 61, General Statutes.
The box referred to in the foregoing statute is a box in which the names of persons certified by the county commissioners for jury duty are required to be placed, and from which regular panels of jurors are to be drawn for service in *464the district court. The challenge in this case shows that only one of the array called to try this cause was drawn from the box and summoned upon the regular panel; it also shows that the other jurors composing the array were not summoned as talesmen to try this particular cause.
The statute provides that whenever it shall he necessary to bring in a new panel of jurors, the same shall be drawn from the box — that is, from the list certified by the county commissioners ; but this does not apply to the summoning of talesmen. It is in the discretion of the court to cause tales-men to be summoned by drawing them from the certified list, or from the bystanders, or by open venire, as heretofore practiced; and such mode of summoning talesmen may he resorted to whenever the regular panel of jurors has become insufficient from any cause, as well as when such panel becomes exhausted in selecting a jury for the trial of a particular cause. Talesmen are persons summoned to make up a deficiency in a panel of jurors regularly summoned; the term is more commonly applied to persons so summoned for a particular cause ; but the term is broad enough to include such as may be summoned to supply a deficiency in the regular panel. No prejudice can result to any party by summoning talesmen in advance, provided they are not actually called into the box to the exclusion of the jurors composing the regular panel. It does not appear that any juror of the original or regular panel was thus excluded in this case. It would be a most serious inconvenience if the court were obliged to resort to a drawing from the certified list in order to complete a jury for the trial of a particular cause, or to supply a deficiency in the regular panel; and the language of the statute does not require such construction.
The petition for a rehearing must be denied; the judgment of the district court must stand affirmed; and an order will be entered of record designating the calendar week commencing April 22, A. D. 1894, as the week for carrying the judgment of the district court into effect, as the statute provides.
Rehearing denied.