Majority
The facts above stated did not appear in the record that was before us when the appeal was heard. They are now embodied in a supplemental record that has since been certified to us by the Superior Court, pursuant to application made to that court with leave of this Court.
The supplemental record falls somewhat short of clearly establishing the making of the prior adverse ruling relied upon. But the Attorney General has made no point of this, and we think the defendant is entitled to a decision on the merits of the matter.
The basic facts are stated in our prior opinion. See Quillen v. State, 10 Terry 114 , 110 A. 2d 445 , 455. Of the sixty-four jurors drawn for the June Term twenty-four had been excused. Under the authority of 10 Del. C. § 4510 the Superior Court directed the Jury Commissioners to draw forty-six additional jurors. The statute provides for an order “for filling up the requisite number of jurors to serve at the Court.” The “requisite number” appears to refer to the number sixty-four — that is, to the total number required to be drawn in a capital case, since the number of jurors who actually serve is seldom the exact number drawn.
Statutory provisions regulating the manner of drawing and summoning jurors are generally held to be directory in nature and not mandatory unless prejudice to the defendant’s rights is shown, or may be inferred as a matter of law. Pitts v. White, 10 Terry 78 , 103 A. 2d 245 , affirmed 10 Terry 134 , 111 A. 2d 217 ; 1 Thompson on Trials, §§ 13, 33, 34; 92 A. L. R. 1109 , annotation. Examples of prejudice are found in cases in which the jury has been drawn by unauthorized persons. Such a flagrant disregard of the law opens the door to fraud and imports prejudice. See State v. Rouner, 333 Mo. 1236 , 64 S. W. 2d 916 , 92 A. L. R. 1099 ; Rhodman v. State, 153 Miss. 15 , 120 So. 201 ; Peak v. State, 50 N. J. L. 179 , 12 A. 701 . But if the irregularity consists only in the drawing and summoning of more jurors than the statutory number, it is generally held that, absent a showing of actual prejudice, the error is no ground for quashing the panel. State v. Medley, 66 W. Va. 216 , 66 S. E. 358 , 360-361; Anderson v. State, 5 Ark. 444 , 445; Umble v. State, 207 Ala. 508 , 93 So. 531 ; Barber v. James, 18 R. I. 798 , 31 A. 264 .
So far as concerns the substantive rights of a defendant in a criminal case, it would seem that if any prejudice flows from disregard of the statutory number of jurors, it would be more likely to come from the summoning of an insufficient number rather than from an excessive number. If the panel in attendance is small, there is a possibility of exhausting it by challenges, and the court might have to call talesmen whose background might be unknown to the defendant.[1] But it is difficult to find any prejudice from the attendance at the trial of some additional qualified jurors.
1 At least, that result could have happened under the former statute relating to talesmen. 1935 Code, Par. 4737.
Defendant argues that § 4510, although using the word “may” and permissive in form, is mandatory in meaning, and requires the court, whenever an insufficiency of jurors exists, to enter an order filling up the panel to sixty-four, the number fixed by § 4517. Hence, he says, the provision relating to the additional number to be summoned must be construed as mandatory.
This argument, if sound, would lead to a surprising result. The court, upon excusing one juror, would have to enter a special order to draw another. This unreasonable result suggests that there is a fallacy in the reasoning. It is not difficult to find.
The arguihent assumes that the statutes require the attendance of sixty-four jurors at the trial. This is plainly incorrect. The statutes refer only to the number of jurors to be summoned, not to the number who may actually serve. It is common knowledge that the number in attendance is frequently less than the number summoned because of the inevitable excuses from service, sometimes granted at the last moment. In administering a statute such as § 4510, the court necessarily has a discretion to determine whether the probable insufficiency of jurors is great enough to make it advisable to draw an additional panel.
We are of opinion that § 4510 is primarily administrative in character, designed to enable the court to transact the business of litigation with efficiency and dispatch. In State v. Medley, supra [ 66 W. Va. 216 , 66 S.
We hold that § 4510 is directory and not mandatory. It follows that the summoning of the extra twenty-two jurors is not ground for quashing the panel unless prejudice to the defendant is shown.
Defendant contends that he was in fact prejudiced in two respects:
First, it is said that the addition to the panel of the extra jurors thrust upon defendant’s counsel a serious burden of additional labor of investigation. We are not impressed with this argument. The order for the additional panel was made on July 10th. On July 17th the case was continued for trial to September 21st. The elapsed time appears to he ample for any reasonable investigation of the members of the panel, even with the excess, and the record is bare of any showing that counsel were actually at a disadvantage. And no objection of this sort was made to the trial court. In effect, defendant chose to stand on the proposition that prejudice in this respect may he inferred as a matter of law — a proposition that we do not accept.
We do not mean to imply that prejudice could never be inferred from the summoning of an excessive number of jurors. Conceivably, the number might be so large as to establish in itself a condition prejudicial to the accused, taking into consideration the time required to investigate the members of the panel and the time available for the purpose. But in this case no such inference can be drawn.
Second, it is said that the drawing of an excessive number of jurors seriously disturbs the ratio of jurors to challenges. Defendant argues that in a capital case the ratio of total number of challenges to the number of jurors is as 32 to 64, and that this ratio stems from long experience and was arrived at as being fair as between the state and the defendant.
Defendant’s argument seems to be based upon the assumption that the present ratio of one-half- — a total of 32 challenges to 64 jurors — represents a long established policy designed in some way to preserve a fair balance between the State and the defendant. This assumption finds no support in the history of the statutes regulating the number of challenges and the number of jurors to be summoned to attend the former Court of Oyer and Terminer.
In the first place, it was not until 1883 that the State was accorded the right of peremptory challenge in capital cases;[2] whereas the defendant in such a case has had from earliest times the right to challenge twenty jurors peremptorily.[3]
In the second place, the number of jurors to be summoned to attend that court has varied widely from time to time. From
2 Act of Jan. 24, 1883, 17 Del. L. c. 229.
3 See the account of the trial of “the Long Finn”, Dec. 6, 1679; Documents Relating to the Colonial History of the State of New York, Vol. XII, p. 467 ff.; Act of 1719, 1 Del. L. c. 22, § 4.
Historically, therefore, the number of jurors to be drawn has borne no relation whatever to the number of defendant’s challenges, and has borne no fixed or close relation to the total number of challenges. This fact supports the statement made above, viz., that the number of jurors drawn has been fixed by considerations of economy and convenience in administration.
We find no basis in the record to support the claim that the defendant was prejudiced by the drawing of the extra twenty-two jurors.
The petition for reargument is denied.
4 Act 15 Geo. II, 1 Del. L. c. 94, §1.
5 Act Feb. 2, 1793, 2 Del. L. c. 8, § 3 (p. 1072).
6 Act Feb. 2, 1811, 4 Del. L. c. 158, §4.
7 Act Feb. 11, 1829, 7 Del. L. c. 190, § 6.
8 Act Jan. 25, 1883, 17 Del. L. c. 220.
9 Act May 29, 1907, 24 Del. L. c. 244, § 12.
10 Act Mar. 5, 1919, 30 Del. L. c. 238.