
    John Glassinger v. The State of Ohio.
    Motion for the allowance of a writ of error.
    The plaintiff was indicted for violation of the act to provide against the evils resulting from the sale of intoxicating liquors. He plead in abatement, that one of the grand jurors who found the bill of indictment was a justice of the peace. To this plea a demurrer was filed on behalf of the state, and sustained by the court. The plaintiff then entered a plea of not guilty, and was tried, convicted, .and sentenced; and he now seeks to reverse the judgment of the court, on the ground that there was error in sustaining the demurrer to his plea in abatement.
    J. J. Winans and Charles Darlington, for the motion :
    Section 21 of the act relating to juries (vol. 70, p. 173) provides that all public officers, while in office, shall be exempt from serving on juries. A justice of the peace is a public officer. By the third section of the same act, exemption is made disqualification; a non-elector and an exempt are each and equally disqualified, and that an elector who .is not exempt, is alone qualified to serve as a juror.
    
      The “required qualifications to act as jurors.” of the tenth, twelfth, and thirteenth, are evidently the qualifications prescribed by the third section.
    Exemption is not a ground of challenge, but disqualified persons are not eligible to be challenged. None but qualified persons should be selected, and it is the duty of the court to dismiss any disqualified that may be found in the panel.
    The same section that disqualifies non-electors disqualifies exempts. The disqualification of a grand juror might always have been specially pleaded in bar or in abatement. Doyle v. The State, 17 Ohio St. 222; Parks v. The State, 4 Ohio St. 234; Huling v. The State, 17 Ohio St. 583.
    
      C. C. Shearer, contra :
    The language of section 3 of the act of 1873 is not mandatory, but merely directory; and any irregularity in the selection of jurors, provided they possess the qualification of electors, can not be taken advantage of by plea in abatement. Huling v. The State, 17 Ohio St. 583-588.
    Exempt and excuse are used indifferently in the statute. The words are synonymous. To exempt is to excuse. Excuse presupposes the imposition of a duty and a qualification to perform it. See 1 Bouv. Law Die., title “ exempts,” one who is excused from duty; Webster’s Dictionary, iitle “ exempt,” “ excuse,” “ privilege.”
    An elector is a competent juror, although he be exempt from serving as juror by law.' His exemption is a mere personal privilege, to be asserted by himself only. 3 Wendell’s Blackstone, side p. 364; Tomlins’ Law Die. 302; 1 ■Chitty’s Criminal Law, 308; 1 Bishop’s Criminal Procedure, sec. 853 and cases cited; also, Ibid., secs. 875, 926.
    The legislation of former years expressly denominated exemption a privilege. Curwen’s Rev. Stat., ch. 363, p. .819; Swan’s Rev. Stat. (1854) 433,434.
    The statute of 1866 (S. & S. 409) recognized a distinction between disqualification and exemption. Three classes of persons are expressly mentioned. Those “ permanently disabled,” those “ disqualified,” and “ those not liable to serve” — the latter being equivalent to exempt.
    A person who serves as a juror for three weeks in any year shall be exempt from further service during the year. 70 Ohio Laws, 173.
    It can not be said that the three weeks service works» a disqualification for the rest of the year, if such person is-called and sees fit to waive his right.
    
      John Little, attorney-general, for the state,
    called attention to section 4 of the act of 1873, that the trustees are not required, when they select names under that section, to exclude exempts. There is no limitation; if they select electors, it is sufficient.
    “ Qualifications,” where used in the act, alludes to qualifications of electors as first used in section 1.
   Bv the Court.

"We see no error. The provision in the “ act relating to juries ” (vol. 70, p. 173, sec. 21), exempting public officers and others from service as jurors, does not have the effect to disqualify the persons so exempted, but merely extends to such persons a privilege, which may be-waived by them.

Motion overruled.  