State v. Sella

• Decision Date: 23 May 1919
• Docket Number: 2351.
• Citation: 180 P. 980,42 Nev. 467
• Parties: STATE v. SELLA.
• Court: Nevada Supreme Court

180 P. 980

42 Nev. 467

STATE v. SELLA.

No. 2351.

Supreme Court of Nevada

May 23, 1919

Appeal from District Court, Humboldt County; Edward A. Ducker Judge.

Adolfo Sella was convicted of murder in the second degree, and from judgment of conviction and from order denying new trial, he appeals. Affirmed.

See also, 41 Nev. 113, 168 P. 278.

J. M Frame, of Reno, for appellant.

L. B Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., and Thos. E. Powell, Dist. Atty., of Winnemucca, for the State.

COLEMAN C.J.

Appellant was convicted of the crime of murder in the second degree. From the judgment, and from an order denying a motion for a new trial, he appeals.

Only two grounds are urged as a basis for the reversal of the judgment and order. The first alleged error pertains to the manner in which the panel from which the trial jury was selected was drawn. Section 4930, Revised Laws 1912, provides that the regular panel of trial jurors shall be drawn in the office of the county clerk. The record shows that when the case was called for trial the attorney for the defendant orally interposed a challenge to the panel of jurors, upon the ground that said panel had not been drawn in the clerk's office, but in the courtroom, of which the clerk's office is not a part. The challenge was denied by the court. We are of the opinion that the provision of the statute relative to the drawing of the panel in the clerk's office is merely directory. State v. Barlow, 70 Ohio St. 363, 71 N.E. 726; State v. Jackson, 167 Mo. 291, 66 S.W. 938; State v. Barnes, 54 Wash. 493, 103 P. 792, 23 L. R. A. (N. S.) 932; State v. Washington, 82 S.C. 341, 64 S.E. 386.

The idea that the statute is merely directory in providing that the drawing of the jury panel shall be held in the clerk's office is reinforced by the fact that it is nowhere required that notice of the time and place of the drawing shall be given. So far as the statute provides, the drawing may take place immediately after the entry of the order directing that it be made. In the case at bar it is not even intimated that the defendant was in the least prejudiced by the fact that the drawing of the panel took place in the courtroom. In these circumstances, for us to hold that such error was committed as would justify a reversal of the judgment would justly subject us to contempt and ridicule. The Supreme Court of Washington, in considering alleged irregularities in the selection of the panel of jurors, said:

"While they should be observed as closely as practicable, so that a competent, impartial and honest jury may be secured, it does not follow that an inadvertent failure to comply with every directory provision will vitiate a panel, unless it is made manifest that some omission prejudicial to the appellant has occurred. 'The manner in which the jury panel shall be drawn is regulated in the different jurisdictions by statutory provisions, which are in most respects merely directory, but which as to their material provisions, designed for securing a fair and impartial jury, must be substantially complied with. *** The

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