#### STATE vs. WILLIAM C. WHITFORD.

A person, who is exempted bylaw from serving on juries, ¡3 not bound to serve on a *special venire.*

The cases of the *State*v *Hogg,*2 Mur. 319 and *State v Williams,*1 Dev; and Bat. 303, cited and approved.

Appeal from the Superior Court of Law of Craven County, at the Spring Term 1851, his honor Judge-Caldwell. presiding..

*100The defendant was summoned as juror, under a special writ of *venire*facias, issued by the Judge of the Court,' according to the provisions of the act of Assembly, Rev. Stat. ch. 35, sec. 17. The writ was issued on Wednesday of the Court, in an indictment for grand larceny ; and the defendant, by virtue of the writ, was summoned to appear as a juror on Thursday of the same term of the Court. On his appearance,, he proved, that he was, at the time of *the*summons, and still continued an acting member of an incorporated Fire Company, in the Town of Newbern, by the name of the Atlantic Fire Company No. 1. The defendant produced in evidence the private act of Assembly, incorporating the said Company, 1846--’7, ch. 163, and also an act of Assembly, 1848--’9, in relation to the said Company, which was in the following words, *“*The members of the aforesaid Fire Company, while they continue to act as such, shall be exempt from serving as jurors, either in the County or Superior Courts.” It further appeared that the said Fire Company had complied with all the requirements of the act of incorporation.

The defendant claimed, that he was exempt from serving as a juror. The Court was of opinion that he was not exempt. Thereupon the defendant refused to serve, and was adjudged by the Court to pay a fine of five dollars. From this Judgment the defendant appealed.

*Attorney General*for the State.

*Strange*and *Dobhin*for the defendant,

Nash, J.

The case presents the single question, whether the defendant was bound to attend the Superior Court of Craven county to serve as a juror upon a special venire. The defendant alleges, that he was not so bound; for the reason, that he was a member of the Atlantic Fire Company in the town of Newbern, and was then acting as such. The Company was incorporated in 1846 and in 1849, by a *101public act, the members of that Company, while they continue to act as such, are exempted *“*from serving as jurors, either in the County or Superior Courts.” The defendant was regularly summoned and refused to serve.

The words of the act are sufficiently broad to embrace the defendant's case. It is alleged, however, that it does not come within its meaning. We are referred to the case of *Hogg,*2 Murphy, 319, and to that of *Williams,*recognizing it, 1 Dev. and Bat. 303. The defendant, in the first ease, was a commissioner of Navigation, and by the act of 1S07, was exempted from serving on juries. He was summoned to attend the Superior Court of New Hanover, as a tabs juror, and refusing, under his exemption, was fined, and brought his case to the Supreme Court, when the judgment of the Court below was affirmed, upon the ground that the act of 1807 did not extend to tales jurors; but that the exemptions stated in it, meant from serving on the original pannel. The reasons assigned are, that these exemptions are not intended as privileges or compensations to the party, unless so expressed in the act. “ So far, therefore,” concludes the Court, *“*as serving on a jury does not interfere with their public avocations, they are still liable to be called on for that service.” And it is because a talisman must be taken from the bystanders at the Court, that they may be summoned, as his being a bystander proves, that he was not then, on official or professional duties, which required his attention. Do these reasons apply to an individual summoned to serve on a special *venire ?*It is thought not. It is true a special *venire*is not the original pannel, and the jurors are summoned only to try prisoners capitally indicted; yet they are taken from the body of the competent citizens of the country, liable to be summoned, while they are engaged in the pursuit of their ordinary business while at home at a distance from the Court House, bound to attend under the same penalties, that compel the presence of the original pannel, and bound as the latter are, “ to at*102tend from day to day, until discharged by the Court.”' There is little, if any, similarity between the talisman and the special *venire*juror. The former is bound to attend only on the day on which he is summoned, and upon its close, if not empanneled, he stands discharged, and may, without any leave of the Court, depart to his home. There is no reason, then, furnished by the case of *Hogg,*why the exemption, contained in the act of 1849, should not cover the defendant’s case. The duties which he, as a member of the Atlantic Fire Company, has to perform, are highly important to the community, and to their due performance, a regular train of drilling and exercise is necessary ; and at any moment,, as well in the day as in the night, the services of the Company may be needed. As the language of the-act of 1849 embraces the defendant’s case, and no good reason, so far as we can perceive, exists, why he should be deprived of the privilege therein expressed, we are of opinion that there is error in the judgment appealed from, and that lie was entitled to his discharge.

Pee, Curiam, Judgment reversed.