
    SAME v. SAME.
    The act of 1834 authorized the selection of talesmen from the bystanders and from the body of the county, and the 41st section of the criminal procedure act of i860, which authorizes the courts to issue a tales de circumstantibus when necessary, does not repeal the act of 1834, so as to limit the selection of talesmen to the “bystanders.”
    Homicide.
   Opinion delivered October 29, 1873, by

Green, P. J.

And now, October 29, the prisoner moves to quash the panel-of 100 talesmen for the following reasons :

1st. The writ of venire upon which the jurors were summoned, does not follow the order of the' court made for said writ, which was for tales-men de circumstantibus.

2d. The jurors summoned and returned are not de circumstantibus, but of the county at-large, having been summoned from various places in. said county.

3d. Because the jurors were not summoned for the trial of this case, but for the trial of all issues.

4th. Because the sheriff, prior to the execution of this writ, has formed and expressed an opinion unfavorable to the innocence of the prisoner, and therefore is not impartial, and is incompetent to execute this process of the court.

Under the act of 1805, the talesmen could only be selected from the "bystanders,” but under the act of 1834 the talesmen were authorized to-be taken from the bystanders and from the body of the county. The 41st section of the criminal procedure act of i860, authorizes the courts to issue a tales de circumstantibus, when occasion shall render the same necessary. We do not think that this section repeals the act of 1834 so as to limit the selection pf talesmen from the “bystanders,” but that the phrase “tales de circumstantibus,” is used simply for the purpose of designating the writ to be issued. This is-a reasonable construction of the section. Any other would amount practically to a discharge of the prisoner or to an acquittal, for he could never be tried. We think, therefore, that this ground for quashing the panel is not sustained. We also think that the writ was properly issued, and that the evidence does not show that the sheriff was disqualified from executing it. We therefore overrule this motion to quash the panel of talesmen.

Hon. Lin Bartholomew and fatties B. Reilly, Esq., District Attorney for Commonwealth; George R. Kaercher, F. G. Farquhar and John W. Ryon, Esqrs., for defendant.  