(dissenting). I would reverse for the reason that the jury which found the defendant guilty was not a properly constituted tribunal. N. J. S. 2A :74r-10 demands that when additional talesmen are required “the sheriff or other proper officer shall forthwith summon, from among the bystanders or others, such additional number of persons qualified to serve as jurors as may be ordered by the court, * * *.” In the present case the under-sherifE assumed this duty, and in the fulfillment of it he had a certain measure of discretion. However, he had no authority to delegate the exercise of that discretion to a stranger.
*183“[T]he generally, if not universally, prevailing rule is that such a duty as that of selecting the persons to act as grand or petit jurors must be performed by the persons appointed to make the selection, and cannot be delegated by them to another or others. State v. Newhouse, 29 La. Ann. 824; Klemmer v. Mount Penn Gravity R. R. Co., 163 Pa. 521, 30 A. 274; Hulse v. State, 35 Ohio St. 421; Commomoealth v. Graddy, 4 Metc. (Ky.) 223; Clare v. State, 30 Md. 163; 24 Cyc. 212; 12 R. C. L. 1016, 1017.” Dunn v. United States, 238 P. 508, at page 511 (5 Cir. 1917).
See also Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1941); United States v. Murphy, 224 F. 554 (D. C. N. D. N. Y. 1915).
In the present ease the under-sheriff permitted a stranger to select and dispatch two prospective jurors to the courtroom. Juror number 14 was one of these and was subsequently chosen as one of the 12 jurors who passed upon the defendant’s guilt. The under-sheriff testified that the first time he saw these two prospective jurors was when they were seated among the spectators in the courtroom. He further testified that he did not recall having any conversation with either of them. Indeed, he did not remember whether he ascertained their identity from them or obtained their names when they gave them to the clerk. Can it be said that the under-sheriff retained or exercised any authority of ultimate selection of the prospective jurors? Cf. Cravens v. United States, 62 F. 2d 261 (8 Cir. 1932), certiorari denied 289 U. S. 733, 53 S. Ct. 594, 77 L. Ed. 1481 (1933), cited by the majority, where the marshal expressly reserved his right to reject the suggestion of a prospective juror made by a third person. Did the under-sheriff in any sense select and summon “bystanders” ? The situation would not be much different if the under-sheriff had simply asked an acquaintance to round up some people and send them to the courthouse to sit on a jury for a murder trial, and then had left on his vacation.
The statute speaks in imperative terms, i. e., that the under-sheriff “shall forthwith summon” prospective jurors. The obvious meaning of the word “summon” in the context of *184the statute is to compel appearance in court. Surely it does not mean that the under-sheriff may invite, or, as in the present case, ask a stranger to invite, persons who for reasons of their own may wish to serve upon a jury of a murder trial. I believe the under-sheriff violated N. J. S. 24. :74-10 by delegating the exercise of his discretion to an unauthorized person. And since the presence of juror number 14 on the jury was the result, it follows that the jury was not a properly constituted tribunal to determine the defendant’s guilt.
The defendant should not be required to show actual prejudice. In State v. Kociolek, 23 N. J. 400 (1957), the special panel of forty-eight jurors in a capital case was drawn from less than the whole general panel. This court held the procedure to be in violation of N. J. S. 2A :74-9 and, without any showing of prejudice, reversed a judgment of conviction. The court said:
“It is not necessary to show actual prejudice; it is enough that the Legislature has so commanded; all that need he shown is that the jury was not constituted in accordance with the statute. * * * ‘The question is whether a proper tribunal was established, and not whether an improperly established tribunal acted fairly.’ ” Id., 23 N. J. at page 409.
The same reasoning applies to a violation of N. J. S. 2A :74-10, which this court in Kociolek, 23 N. J. at page 409, recognized to be a companion provision of N. J. S. 2A :7A-9. The right to a legally constituted jury is at the very heart of our criminal law. To tolerate abridgment of that right unless actual prejudice can be shown is effectively to destroy it, since the defendant’s burden of showing prejudice is in the nature of things unreasonably heavy. Moreover, scrupulous adherence to the requirements of the statute is necessary, not only in the interest of criminal defendants, but also in fulfillment of the State’s responsibility to provide trial by fair and impartial juries. It seems to me that the selection of jurors by unauthorized persons destroys one of *185what the majority calls “the essential elements of the scheme devised by the Legislature to insure impartiality.”
The majority admits that the course taken by the undersherifi was “unwise because it invited inquiry as to whether some disqualifying event may have occurred” before juror number 14 was made a member of the panel. To my mind the under-sheriffs course of action was more than unwise— it created the possibility of outside influences which might interfere with a fair and impartial trial for both the defendant and the State. I believe that the presence of such a possibility and its inherent capacity for harm is sufficient to require a reversal.
As to the other matters decided I am in complete accord with the majority.
For affirmance—Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Hall and Schettino—6.
For reversal—Justice Proctor—1.