Page:North Dakota Reports (vol. 1).pdf/63

 irregularities of the clerk in calling the jury, as charged in the affidavit, are not disputed; and we shall assume that they occurred as stated in the affidavit. Such facts, supplemented by statements of fact contained in the bill of exceptions, may be profitably recapitulated here. They are briefly as follows: First, the irregularities of the clerk in calling the jury did occur substantially as set out in the affidavit of counsel; second, defendant’s counsel was present as senior counsel, and discovered said irregularities while they were going on, and before the jury was collectively sworn; third, that, upon discovering such irregularities, defendant's counsel objected to the “manner of selecting the jury,” but did not base his objection in whole or in part, upon the irregularities set out in the affidavit, but based his said objection upon another and independent ground; fourth, said irregularities were not in any manner brought to the attention of the district court until after the verdict, nor until said affidavit was presented to that court as a part of defendant’s application for a new trial. We look in vain through the record for any evidence that defendant did, at the time he discovered the irregularities described in his affidavit, or at any time, “challenge the array,” as is erroneously stated in the affidavit. A challenge to the array, under the statute, is known as a “challenge to the panel.” Such challenge must be in writing, specifying the facts, and cannot be taken after a juror is sworn. At the time the irregularities were going on which are complained of, it was too late to challenge the array. Code Crim. Proc. § 315. No such challenge was made. Applying established principles governing the formation of trial juries, both in civil and criminal cases, it would have been the manifest duty of the trial court, if its attention had been called to the flagrantly illegal mode of impaneling the jury adopted in this case, to promptly dismiss all jurors thus unlawfully called into the jury-box. No court would have ventured to proceed with the trial, under such circumstances, if it had known of the irregularities of the clerk before the trial began. But, in the case at bar, as before shown, defendant’s counsel discovered the clerk in the commission of the acts complained of, and suppressed, or did not make known to the court, his knowledge of