delivered the opinion of the court.
We find no reversible error in this record, and deem it necessary to notice specifically only two of the assignments of error.
Appellant, having demanded a special venire, and the jury box being exhausted, the court directed the sheriff *26to summon forty men for service as jurors in the case, if necessary. The sheriff thereupon selected from the list of qualified voters forty names, handed, a list thereof to the clerk, and they were by him embodied in a writ issued to the sheriff. Of this number only thirty were summoned; the sheriff’s return showing that the remaining ten were not found. Appellant thereupon filed a motion to quash the venire on the following grounds: “First. Because the said veniremen were not drawn as required by law. Second. Because the court ordered a special venire facias to issue to the county of Leflore for forty men; that is, that the sheriff summon and serve with process forty good and lawful electors of the said county and state to appear at the courthouse of said county on the 5th day of February, 1913, from which a jury is to be selected to try the defendant on the charge of murder.. The writ of special venire shows that the forty-names appear on the said writ, but that the sheriff has only served thirty of the forty men selected, and that only thirty men of the special venire will be present, and is present, from which a jury is to be selected. Third. Because the special venire in this cause was selected and drawn out of the courtroom, and when the defendant, or either of his counsel, and when the judge and the district attorney were not present, and the defendant, or either of his attorneys, did not know the names of the men who had been selected by the sheriff to be summoned as veniremen in this case. Fourth. Because the sheriff selected the forty men in this venire from the five beats in the county, an order of the court having been directed to him to select'and serve forty men, good and lawful, to appear on the 5th day of February, 1913, and the said men were not drawn from the jury boxes of the county as directed by law. Fifth. For other reasons to be assigned on the hearing of this motion.”
This motion was by the court overruled. "When a special venire is demanded and the jury box is exhausted, *27it becomes the duty of the court, under section 2715 of the Code of 1906, to order the sheriff to summon as many jurors as necessary, the number to be fixed by the court in no case to be less than forty; and it then becomes the duty of the sheriff to summon the required number of men, their selection resting wholly in his discretion, assuming', of course, that he acts in good faith in making the selection. It is unnecessary for him to deliver a list of the jurors he expects to summon to the clerk to be embodied in the writ issued to him; all that he is required to do is to return the names of the forty men summoned.. The sheriff failed to summon forty jurors, and therefore to that extent failed to obey the order of the court; but under section 2718 this provision of the jury law is directory merely. Since there is no hint in the record that an impartial jury was not obtained, .appellant suffered no harm by reason of the fact that the sheriff only summoned thirty men, and cannot complain thereof. Buchanan v. State, 84 Miss. 333, 36 South. 388.
The court committed no error in refusing the twenty-second instruction requested by appellant, which the reporter will set out in full; and the cases of Ammons v. State, 89 Miss. 369, 42 South. 165, and Bell v. State, 89 Miss. 810, 42 South. 542, 119 Am. St. Rep. 722, 11 Ann. Cas. 431, in so far as the latter case deals with the question here under consideration, are hereby overruled. The refusal of this instruction could not have operated to the prejudice of appellant. The jury were fully instructed on the law of the presumption of innocence and reasonable doubt, and it is hardly possible that any of the jurors selected- were not men of sufficient intelligence to know that he. must not return a verdict of guilty simply because the other jurors favored doing so.
Affirmed, and Friday, the second day of January, 1914, fixed for the date of execution.
Affirmed.