The opinion
Brown, J.,
dissenting: I am of opinion that the challenge to the array should have been sustained upon the ground that the jurors were not drawn by the persons authorized and designated by the statute. The statute, section 1963; is express that the sheriff' of the county and the clerk of the commissioners, in the presence of and assisted by two justices of the peace, shall draw the jury. . The sheriff was not present and did not assist in the drawing, but upon being notified by the clerk to the board of county commissioners that a jury would have to be drawn, simply told J. L. Taylor, his deputy, “to go help draw a jury.”
I think the provisions of the statute are mandatory and the duties nondelegable, and that the sheriff has no more power to appoint another *318 to act for him than a member of the board of commissioners or the clerk of the board or the justices of the peace would have.
This is not the case of summoning talesmen under the supervision and direction of the court. It is drawing the regular panel of jurors from the body of the county, from which the grand jurors as well as petit jurors are to be selected. The persons authorized to perform this important function are selected because of their individual personality and supposed.responsibility and integrity. The jurors selected may be called upon and pass upon a man’s life or death.
To draw the jurors from the box is a judicial function of grave importance, requiring men of undoubted 'integrity, in order to prevent frauds. The discharge of this duty is entrusted to two judicial officers and two “lay judges,” the clerk of the board and the sheriff of the county. _
From time immemorial the office of sheriff has been recognized as one of great trust and responsibility, and he who fills it is elected by the people of his county and has the stamp of their approval and the seal of their confidence.
It is very appropriate that he should be named as one to discharge such an important duty as drawing the jurors who are to determine matters affecting the life, liberty, and property of their fellow-citizens.
There is no such office as “deputy sheriff” created by law. He is the sheriff’s appointee, and there is no limit to the number he may appoint, as they are paid by him.
Trials by jury lie at the very foundation of our system of jurisprudence, and it is of vital importance to the welfare and safety of the State that the drawing of the jurors should be conducted by those appointed by law and safeguarded by observing the provisions of the statute.
It is, therefore, inconceivable to me that the Legislature should have contemplated that this solemn duty could be delegated by the sheriff or the other responsible officials to whom its discharge is entrusted.
Mb. Justice Walkeb concurs in this opinion.