Moss v. Appanoose County

Robinson, C. J. The only question presented for our 'determination relates to the drawing of talesmenfor the jury. The plaintiff contends that they were not selected -as required "by section 349 of the Code, and alleges that the clerk drew from the talesmen box the names of more than one hundred persons without announcing the names drawn, and selected person who were in business near the court room; that none •of the ballots were folded; that the* attorney for the defense was present, and knew in advance who were selected; that :an attorney for the plaintiff protested to the clerk in regard to the. manner of the drawing, but that the clerk answered that “many of those drawn were working in the coal banks and other places, and it would take some time to get them here.” The plaintiff, in support of her claims, filed affi-. davits 1 which tend to show that the claims are well founded. They are resisted by counter affidavits, which tend to show that the drawing was under the [673] direction of tbe court and regular. The statute requires that the drawing be in the presence of the court, and we must presume that it was so made. The facts involved in it, therefore, should have been shown by a bill of exceptions, and not by affidavits. State v. La Grange, 99 Iowa, 10. No excuse for failure to show the facts by bill of exception appears. Moreover, objections to the manner of drawing should have been made to the court. If the affidavits be eonsidred, 2 due weight must be given to the counter affidavits, and when that is done, a material violation of the law in the manner of drawing the talesmen is not shown. See State v. McIntosh, 109 Iowa, 209; State v. Minor, 106 Iowa, 642. The judgment of the district court is therefore AEEIRMED. GraNger, J., not sitting.