Supreme Court. Monroe General Term.

December, 1863.

*Welles, M. D. Smith*and J. *G. Smith,*Justices.

#### The People *v.*Hiram McGeery.

The act of-1861 (sec. 2, *chap.*10 *of the Session Laws*of 1861), directing that where the regular panel of jurors is exhausted without obtaining a jury, the necessary jurors shall he drawn from the town box of the town in which the trial is had, is applicable as well to criminal as to civil courts.

Where a sheriff is directed to summon jurors, they may he lawfully summoned by his deputies under his direction.

An indictment contained counts for burglary, for larceny and for receiving stolen property, knowing it to have been stolen. On a general verdict of guilty, *held,*that the defendant was properly sentenced for the highest crime charged in the indictment.

It is no good reason for reversing a judgment pronounced on a conviction for burglary, that it does not appear from the record that the defendant *646was asked before sentence if he had anything to say why sentence should not be pronounced against him.

In the absence of an objection or exception on a trial for crime, it will be presumed, on review, that the usual formalities were complied with.

Writ of Error to the Court of Oyer and Terminer of Ontario county.

The defendant was indicted for burglary in the first degree, after a previous conviction for a felony, jointly with one Curtis, and was tried separately, having claimed so to be tried at the November Oyer and Terminer in Ontario county, 1861. At the trial the regular panel of jurors was exhausted before, the jury was filled, and the court ordered the sheriff to draw fifteen names from the box provided by the cleric, containing the names of all persons who had been selected and returned as suitable persons to serve as jurors, and who resided in the town of Canandaigua, where said court was held, pursuant to sec. 2d, chap. 10, of the Session Laws of 1861, which order was objected to by defendant’s counsel, and the objection overruled, and the defendant excepted.

The sheriff having returned the list of jurors so drawn as duly summoned, the defendant’s counsel challenged the array because the sheriff did not personally summon all the jurors — some having been served by one deputy and some by another, and the residue by the sheriff. The challenge was denied and these facts proved. The court then overruled the challenge, and the defendant’s counsel duly excepted.

In calling the jury, the district attorney claimed the right to challenge one juror peremptorily in behalf of the people, to which the prisoner’s counsel objected, and the court overruled the objection and allowed the challenge, and the juror was set aside, and the defendant’s counsel excepted.

The defendant was convicted and sentenced to the State prison for ten years and five months.

*647Some of the counts of the indictment were for burglary, some for larceny, and some for receiving the stolen property, knowing it to be stolen.

It was objected that the verdict was irregular, because it did not find upon all the counts, but found the defendant simply guilty. Also, because it did not appear upon the record that the prisoner, before sentence, was asked why sentence should not be passed upon him. .

*J. H. Anthon,*for the prisoner.

*W H. Smith*(District Attorney), for the people.

*By the Court,*E. Darwin Smith, J.

The objection that the jury was not properly empanneled, I think entirely untenable. After the regular panel was exhausted there was no legal way to fill up the jury, except by drawing, as was done in this case, from the town box, of persons of the town of Canandaigua, according to the provisions of the act of 1861, section two, chapter 210. That act repeals all other provisions of law for securing a jury after the regular panel is exhausted, and applies to all courts of record where jury trials are had in this State ■—to courts of Oyer and Terminer as much as to civil courts. The act applies in terms to all courts, and I see no ground for excepting criminal courts. The jury was properly drawn and pronounced. When a sheriff is directed to summon a jury, he may do it himself, or direct it to be done by constables or deputies, as was done in this instance. It is, in legal effect, done by the sheriff when it is done under his direction and authority by any subordinate officer. The sheriff in this case made the proper return that he had duly summoned the jury as directed by the order of the court.

The objections to the indictment are not well taken. The misjoinder of crime, in some of the counts for which the defendant was not jointly liable to be convicted, was *648obviated by the quashing of those counts at the trial, as it was admitted in the argument to have been duly done.

The conviction and sentence I think entirely right. I can see no error in these particulars. The jury was entitled to render a general verdict, and this we must hold to have been upon the higher offense charged in the indictment and for which the prisoner was tried. The sentence was the proper sentence under the statute for burglary in the first degree.

The objection that it does not appear by the return and record that the prisoner was arraigned, or plead to the indictment, or was present at any time during the trial, is not well founded. It is distinctly stated that he pleaded to the indictment, which implies an arraignment, and it also appears that he, by his counsel, objected to the exercise by the district attorney of the right to challenge a juror, and it is also stated that the “ prisoner, in due form of law, challenged the array of the jurors.” This is not stated to have been clone by counsel; and the objection that it does not appear that the prisoner, after conviction, was asked why sentence should not be passed upon him, is, I think, not well founded. Such an objection has been held to be valid in capital cases, but not in felonies or misdemeanors. There is now no reason in this objection, since exceptions are allowed in criminal cases, and prisoners on trial for criminal offenses are allowed counsel who are capable of attending to their interests and making such motions in arrest of judgment, or otherwise, as may be proper. *1*think, also, in regard to such mere formal questions it should be implied in a court of review, in the absence of any statement, objection or exception upon the record on the subject, that the usual formalities in such case had been duly complied with according to established and uniform practice in criminal trials. I think no error occurred in the court below, and that the judgment should be affirmed. [Judgment affirmed.