the Criminal Code are too clear for doubt. We therefore hold that the district court did not err in swearing each juror individually, as he appeared, and before proceeding further with the call.
Another assignment of error is as follows: “The court erred in allowing the clerk to call the names of the jury-men without any box or ballots, either as provided by law or otherwise.” But for the affidavit of Taylor Crum, Esq., defendant’s counsel, hereinafter set out in full, this assignment of error would be summarily disposed of, by stating the fact that the record in this case contains no evidence whatever that any objection was made, ruling had, or exception taken during the trial, or at any time, based upon any alleged irregularity of the clerk in calling names of jurors from a list of names before him not drawn from the jury-box. The bill of exceptions was settled long after the motions for a new trial and in arrest of judgment were made and overruled. The affidavit of counsel referred to was incorporated with the bill and is now before us. It made its first appearance in the case, and was filed with the clerk, on the day the motion for a new trial was determined, which was some six days after the verdict was returned into court. It is manifest that the very particular language used by the learned judge who presided at the trial, and subsequently settled the bill of exceptions—which language we have already quoted from the record—was employed with the intention and purpose of placing upon the record an authoritative negative of the plain inference to be drawn from the language of the affidavit, viz., the inference that defendant’s said counsel did, upon discovering the irregularities of the clerk in drawing. the jury as detailed in the affidavit, proceed to make an objection to the court, and based it upon the irregularities specified in the affidavit. In view of the conflict of matters of fact between the plain inference to be drawn from the averments in the affidavit and the record of the proceedings had at the trial as settled by the court below, we cannot, as a court of review, do otherwise than assume, for the purpose of this case, that the record imports verity, and must prevail as against the affidavit of counsel. Our conclusion, therefore, upon this assignment of error will be
