strongly declared.” The judgment of the district court is affirmed. All concur.
Reporter: See also Farmers & M.’s Bank v. School Dist., 6 Dak. 255; McGuire v. City, id. ib. 346.
Territory of Dakota, Defendant in Error, v. Marice O’Hare, Plaintiff in Error.
1. Criminal Procedure—Calling Jury.
In a criminal case, where the jury was called and sworn singly, and without calling twelve jurors into the box, and where the parties were required to exhaust all challenges to individual jurors as each juror appeared, and before proceeding further with the call, held not error.
2. Same; Calling From List—Error; Waivable, How.
Where the clerk of the district court, in calling names for a trial jury, did not obtain the names from any jury-box, and did not use either a jury-box or ballots in calling the jury, but called off the names of those who served as jurors from a list of names before him, held, it was error. Held, further, that, had the attention of the trial court been called to such irregularity before the trial began, it would have been its imperative duty to have promptly dismissed from the trial panel all jurors who were so drawn. But where, in a criminal case, such irregularities of the clerk were discovered by the defendant’s counsel while they were going on, and before the trial began, but he made no objection based on such irregularities, but, on the contrary, kept silent as to the same until after a verdict was returned into court, held, that the irregularity was waived. Held, further, that such irregularity was of a character which might be waived without impairing defendant's right of trial by jury. Held, further, that it was too late to take advantage of such irregularity upon a motion for a new trial, where defendant’s attorney had such previous knowledge of the irregularity, but reserved his knowledge thereof, and brings it before the court for the first time, and by affidavit, upon a motion for a new trial.
3. Same; Overruling Challenge for Cause When Peremptory Challenges Unexhausted Not Reversible Error.
Where it is conceded that defendant’s challenge of a juror for cause in a criminal case was improperly overruled, but it did not appear affirmatively from the record that, at the time the jury was completed and accepted, defendant has exhausted his peremptory challenges, held, that defendant was not in a position to take advantage of such erroneous ruling. In such case, the court will assume that the juror, if objec-
