based upon the record, showing that no objection was made by the defendant or his counsel to the manner of selecting the jury, which was based upon the irregularities detailed in the affidavit. The affidavit is as follows: “Taylor Crum, being duly sworn, says that he was present, as counsel for the defendant, on his trial on an indictment for murder, on the 16th day of April, 1889; that when the case was called for trial only fourteen of the regular panel were in court, all others being excused by the court. A jury composed of such part of the regular panel called for civil actions, and in part of persons summoned from the body of the county to complete such panel, were present in the court room; that, upon proceeding to the formation of the trial jury, the clerk did not prepare separate ballots, containing the names of persons returned as jurors, either as provided by law or otherwise; that no ballots were folded and deposited in a sufficient box, or any box, either as provided by law or otherwise; that no box was shaken or closed, so as to intermingle any ballots; that the clerk did not, without looking at any ballots, draw them from any box, either as provided by law-or otherwise; that the clerk had no box or other receptacle whatever, of any kind whatever; that no ballots whatever, of any kind whatever, nor any separate pieces of paper whatever, were prepared by the clerk, or any other person; that the clerk called out, from his mind, or from a list of names before him, and not otherwise, one by one, the names of persons to act as trial jurors, some of whom were on the regular panel summoned for civil actions, and others specially summoned from the body of the county to complete such panel; that in the formation of the trial jury there was no compliance, in any respect whatever, with the provisions of law relative to the formation of the trial jury, as provided in §§ 7324, 7326, 7331, and 7332, Comp. Laws Dak. being chapter 7, tit. 7, Code Crim. Proc. Dak.; that upon discovery of the proceedings, and before the commencement of the trial, and before the trial jury had been collectively sworn to try the case, defendant, by his counsel, objected to the manner of calling the jury, and thereby challenged the array of trial jury, which objection or challenge was overruled.” The
