The defendant was convicted of murder. The Superior Court, Sussex County, entered judgment, and defendant appealed. The Supreme Court, Southerland, C. J., 110 A.2d 445, affirmed the judgment. The defendant thereafter filed a petition for reargument. The Supreme Court, Southerland, C. J., held that fact that order of Superior Court directing jury commissioners to draw 46 additional jurors, when number of jurors summoned to appear was insufficient, resulted in bringing number of jurors on panel up to 86 instead of the 64 provided for by statute, was not ground for quashing panel, in absence of showing of prejudice to defendant.
Petition for reargument denied.
Daniel J. Layton, Jr., and Everett F. Warrington, Georgetown, for appellant.
John J. McNeilly, Dep. Atty. Gen. (Vincent A. Theisen, Chief Dep. Atty. Gen., with him on the brief), for the State.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
[49 Del. 165] Defendant's petition for reargument is directed to that part of our opinion dealing with his motion to quash the panel of petit jurors. We held that he had been guilty of inexcusable delay in not making this motion until the day of trial, after the court had convened and the jurors and witnesses were in attendance. Defendant now avers that a similar motion, on similar grounds, had been filed in the case on May 14, 1954 directed to an order of the Superior Court of May 12, 1954 for the summoning of additional jurors to serve at the April Term, then in session. This prior motion, says defendant, raised the same question of law as the motion made on the eve of trial, and was overruled by the Superior Court. Hence defendant argues that at the trial he was bound by the ruling, and was required only to renew the motion as a formal matter in order to reserve the point for argument on appeal.
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, Del., 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. [49 Del. 166] Hence the court's order exceeded the authority conferred by the statute and brought the total panel up to eighty-six instead of sixty-four-an excess of twenty-two. The question is whether this irregularity required the quashing of the additional panel.
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, Del.Super., 103 A.2d 245, affirmed Del., 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 ...