# State v. Brown > Supreme Court of Missouri · April 12, 1954 · 364 Mo. 759 URL: https://www.frixlaw.com/law-library/cases/9661493 ## Case - **Full name:** State of Missouri, Respondent, v. Charles Ray Brown, Appellant - **Court:** Supreme Court of Missouri - **Decided:** April 12, 1954 - **Citations:** 364 Mo. 759; 267 S.W.2d 682; 1954 Mo. LEXIS 572 - **Precedential status:** Published - **Opinion:** On rehearing by Hyde - **Judges:** Hyde, Van Osclol Coil - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9661493 ## Opinion text On Motion for Rehearing. HYDE, P. J. In his motion for rehearing defendant contends that he complied with Section 510.210 in seeking disqualification of the juror over 65 years of age. (Statutory references are to RSMo. and V. A. M. S.) However, that section requires “that a party, at the time the ruling or order is * * * sought, makes known to the Court the action which he desires the Court to take.” Counsel herein never did request the Court to take any action. He did make a statement about age qualifications of jurors but he did not say that he challenged this juror for cause (the procedure provided in Section 495.140 for making known to the Court any action desired by a party to be taken under Section 495.130) ; nor did he state in any other way any action that he desired the Court to take concerning this prospective juror. It is my view that it would not be in the interest of the administration of justice to hold that by merely making some statement in the record, without a request for any action by the Court (when affirmative action would be required to accomplish anything), a party can claim the Court erred in failing to take some action which was not requested. This would provide an easy method to ambush the trial judge by making it possible to claim error in matters as to which he was never asked to take any action and bring about reversals on all kinds of technicalities. Especially in such a matter as selection of jurors, if a party does not want a particular juror to serve he should be required to' say so definitely. Certainly the sole fact alone of a juror being 66 instead of 64 is a *774 technicality not affecting the merits of the case or the fairness of-the trial and is so recognized by Section 494.050. Furthermore, I do not think the provision in Section 495.130 as to persons “over the age of sixty-five years” should be construed as an absolute mandatory disqualification. I think it might reasonably be construed as a directory provision, an exemption and not an absolute disqualification. I think this is true because it would be purely arbitrary and beyond the scope of any reasonable classification to make the age of 65 an absolute disqualification in only three counties in this state (Chap. 495) when it is only a ground of exemption throughout the state. (See Sec. 494.020; Sec. 496.100; Sec. 497.220; Sec. 498.110; also there is no limit at all on the age of trial judges in courts of record and appellate judges may serve to the age of 75, Art. V, See. 25, Const.) Many provisions stated in mandatory form are held to be directory when that is the reasonable construction. (For one example see State ex rel. Rogersville Reorganized School District v. Holmes, 363 Mo. 760 , 253 S. W. (2d) 402 .) I think that the motion for rehearing should be overruled. All concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9661493. Public record. Not legal advice.