
    The State of Ohio v. Barlow.
    
      Selecting and drawing juries — Manner of concerns public rather than parties in cause — Law for choosing jury in force at commencement of prosecution — Amended to provide different mode of selection — Not error for court to ■overrule challenge to array of jurors — Selected under new law — Section 79, Revised Statutes.
    
    1. The manner of selecting and drawing juries concerns the public rather than the parties in a cause. The statutory provision therefor relates neither to the right of a party as to the merits, nor to the remedy for the vindication of that right, within the meaning of section 79, Revised Statutes.
    2. Where, at the time of the commission of an.offense the statute respecting the selecting and drawing of juries provides for a commission of three freehold electors for selecting the names, and that the jurors shall be drawn from the wheel in the presence of the court, or a judge thereof, and the clerk and sheriff, and is, after the commencement of the prosecution and before trial, amended so as to provide for a commission of four freehold electors, and that the drawing may be had in the presence of the clerk and sheriff only, the former law-being repealed, it is not error for the trial court to overrule a challenge to the array of jurors selected under the last cited act based on the ground that the jurors for the trial of that prosecution should have been selected under the provisions of the law in force at the time of the commission of the offense.
    (No. 8865
    Decided June 21, 1904.)
    Error to the Circuit Court of Franklin county.
    At the April term, 1902, of the court of common pleas of Franklin county, the defendant in error, George T. Barlow, was indicted for the crime of embezzlement charged to have been committed the nineteenth day of the preceding February, the defendant being then in custody by force of an order of commitment by the police court of Columbus, dated March 5, 1902. On the twenty-second day of the following October another indictment was returned in the same court charging the same offense-committed at the same time. The cause being at issue, on March 9, 1903, a jury was called to try the-indictment of October 2, 1902, to which jury the defendant interposed a challenge to the array, which challenge being overruled, the cause proceeded to-trial. The defendant was found guilty and sentenced to the penitentiary. On error prosecuted to-the circuit court that court reversed the judgment- and sentence on the ground that the trial court erred in overruling the challenge to the array. The state-brings error.
    
      Mr. E. L. Taylor, Jr., prosecuting attorney; Mr.. A. T. Seymour, Mr. Ifarl T. Webber and Mr. Wilbur E. King, assisting prosecuting attorneys, for plaintiff in error.
    The contention of the defendant in error is, that, he should not have been put to .trial under the act of September 30, 1902; because the crime which he is-alleged to have committed is .alleged to have been committed on the nineteenth day of February, 1902,. and that he is entitled to be put to trial under the-jury law in existence at that time; and he brings to-the support of this proposition the following: section 79, Rev. Stat.; Hartnett v. State, 42 Ohio St., 568; Palmer v. State, 42 Ohio St., 596; Bach v. State, 38 Ohio St., 664.
    The application of section 79, Revised Statutes, must rest upon the hypothesis that the selecting and. drawing of jurors is a remedy of a party to a cause: or proceeding; that section 79 and the act of September 30,1902, are in pari materia, and that wherever the provisions of section 79 are repugnant to the act of September 30, the later act must yield to said section.
    The selecting and drawing of jurors is not a remedy of a party to a cause or proceeding. We contend that the selecting and drawing of a juror is not a remedy of a party to a cause. That the selecting and drawing of jurors is a matter of public concern in which the parties to an action have no more interest than any other member of society. The selecting and drawing of jurors is not made with a view of giving the defendant a right or remedy. It is done for the purpose of distributing and equalizing the burden of jury service. Huling v. State, 17 Ohio St., 589; State v. Thomas, 61 Ohio St., 449.
    Section 5189<ü, Revised Statutes, the section under which this defendant in error claims the jury •should have been drawn to try him, in its provisions designate the clerk of the court, the sheriff and the judge, as persons who shall be present when the •drawing of the jurors take place.
    Under this section nor any other section of the jury law under which he claims, the defendant in error had no right to be present either in person or by counsel; he had no right to say in what manner -the jury should be drawn.
    The only difference there is between section 5189i and section 5165 of the act of September 30, 1902, is that this later statute provides that the clerk shall turn the wheel and proceed to draw the names from the wheel in the presence of the sheriff. This change was brought about for the convenience of the court, because in some judicial districts it was found very difficult for the court to he present when the names were drawn from the wheel. But what possible difference can this make to the defendant? Before he can complain some substantial right must be affected. •
    We further contend that the provisions of section 79 do not control the act of September 30,1902. The attempt here, to first claim that section 79 and the act of September 30, 1902, are in pari materia, and then because of their repugnancy force the act of September 30, 1902, to yield in section 79- violates every canon of statutory construction.
    It is a well settled rule of long standing that “Where the last statute is complete in itself, and intended to prescribe the only rule to be observed, it will not be modified by the displaced legislation, as laws in pari materiaSutherland on Statutory Const., sec. 286.
    The language and intent of the act of September 30,1902, requires that the policy of section 79 should be disregarded.
    We are aware that courts will not look with favor on repeals by implication. But if the statutes are flatly contradictory to each other the later repeals the former. Work v. Massie, 6 Ohio, 504; Commissioners v. McComb, 19 Ohio St., 321.
    By the provisions of section 7276,'Bevised Statutes, it is apparent that section 79, Bevised Statutes, is not intended to affect the selecting and drawing of jurors. Sutherland on Statutory .Construction, sec. 238.
    If the court holds that the selecting and drawing of jurors is not a remedy of a party then section 79 and the act of September 30, 1902, are not in pari 
      
      materia, and all difficulty vanishes. If the court holds that the selecting and drawing of jurors is a remedy of a party under the act of September 30, 1902, or the jury law for other than capital offenses as it existed prior to the act of September 30, 1902,. then every person who is accused of crime committed before September 30, 1902, and who have not been tried can not now be tried because there is no law under which a jury may be selected and drawn to try him. This it seems to us is the dangerous consequence to be avoided in construing section 79, if it is to be considered in pari materia with the act of September 30,^1902. And the mere fact that it incidentally relates to the same subject matter is not sufficient to hold it in pari materia.
    
    The court below rested its opinion upon the case of Bach v. State, 38 Ohio St., 664. We see no analogy between this case and the case at bar. The only proper question to be made here is whether or not the defendant in error had substantial justice in the trial in the court of common pleas?
    Slight changes in' the jury law not affecting the substantial rights of the defendant in error; not changing the course of justice is not sufficient to sustain a finding of prejudicial error.
    Whatever substantial rights the defendant in error has they are given him by the constitution and the statute in express terms. And unless he can show some prejudicial error in the selecting and drawing of jurors under the act of September 30, which was the only jury law in existence at the time he was tried, he has no right to complain. Reed v. State, 15 Ohio, 222.
    In their reply to the brief of defendan' in error the counsel for plaintiff in error also cited and com.mented upon:
    
      Dolan v. People, 64 N. Y., 485; The People v. Petra, 92 N. Y., 128; Huling v. State, 17 Ohio St., 589; State v. Thomas, 61 Ohio St., 446; South v. State, 86 Ala., 619; Hawes v. State, 88 Ala., 37; Perry v. State, 9 Wis., 21; State v. McClear, 11 Nev., 55; State v. Collyer, 17 Nev., 275; Jesse v. State, 20 Ga., 164; Cooley’s Constitutional Limitations, 329.
    
      Mr. M. B. Earnhart; Messrs. Sater & Sater; Mr. •Geo. S. Peters and Mr. Jas. A. Allen, for defendant in error.
    Where a prosecution has commenced and the statute then in force relating to the selection of jurors is repealed, and, before the accused is brought to trial, a new trial is enacted in its stead, the jurors •should be selected under the law in force at the time • of the commencement of the prosecution, unless it be •otherwise expressly provided in the new law or its repealing clause.
    The court is not concerned with the question that, if the circuit court be sustained, Barlow cannot be tried at all because there is no law under which a jury may be selected and drawn to try him. That is a question which should have been addressed to the legislature at the proper time. The court simply interprets the laws as it finds them, nor will it be the first instance in which, if our contention is sustained, an action fails, or a right is lost, or an accused goes free, because the statute affords no remedy, or the legislature has blundered.
    
      Gompf v. Wolfinger, 67 Ohio St., 144, furnishes an .illustration of the sacrifice of the rights of litigants through “inadvertence” of the legislature, and of the inability of this court to restore the party whose rights were lost to his former condition.
    It is immaterial whether the act of September 30, 1902, is remedial in its nature or otherwise, because that act contains no express provision referring to pending prosecutions. Railroad Co. v. Hedges, 63 Ohio St., 339; Shuman v. Drayton, 8 Circ. Dec., 12; 14 O. C. C., 328; Cincinnati v. Davis, 58 Ohio St., 234; Ham v. Kunzi, 56 Ohio St., 538; Chinn v. State, 47 Ohio St., 579; Gilleland v. Schuyler, 9 Kan., 569.
    Instances are not wanting in which states having a statute similar to section 79, Revised Statutes, and desiring to control the mode of procedure in the trial of cases by amendatory or repealing statutes, have expressly provided in such amendatory and repealing statutes that the mode of procedure in the trial of pending cases shall be in accordance with their provisions. Bernier v. Becker, 37 Ohio St., 74; Hartnett v. State, 42 Ohio St., 568; Frazier v. State, 23 Ohio St., 551; Palmer v. State, 42 Ohio St., 596.
    The act of September 30, 1902, was not intended to have and did not have a retroactive effect and did not extinguish Barlow’s right to the selection of a jury according to the previously existing law — a right both sacred and valuable. It contained no provision making it applicable to pending actions, prosecutions or proceedings, and therefore the repealed statute, and not the new or amended statute, applied (State v. Rabbitts, 46 Ohio St., 183). It was wholly prospective in its operation. It had no effect whatever on Barlow’s rights, nor did it enlarge those of the state. His right to a trial by a jury selected under the law in force at the time the prosecution be'gan had already vested by virtue of the proceeding instituted against him in the police court and the indictment returned at the April term, 1902.
    The accused had a right to a trial by a jury selected in the precise manner provided by the law, applicable to his case. Bach v. State, 38 Ohio St., 664.
    This same doctrine is announced in State v. Thomas, 61 Ohio St., 461, in which Judge Williams held that mere irregularities in the correct mode of procedure are reached by challenge.
    Irregularities in selecting and drawing grand ju.rors which do not relate to or affect their personal qualifications must and may be taken advantage of, if at all, by challenge for cause. Doyle v. State, 17 Ohio, 222; Huling v. State, 17 Ohio St., 583; Wilson’s Ohio Criminal Code, 696; State v. Collyer, 17 Nev., 275; State v. McNamara, 3 Nev., 70; State v. Williams, 5 Port. Ala., 130; Dutell v. State, 4 Greene (Ia.), 125.
    That a grand jury must be such as is exactly prescribed by law appears from People v. Thurston, 5 Cal., 69, in which an indictment was held worthless because it was returned by twenty-three instead of .twenty-four grand jurors. Brazier v. State, 44 Ala., 387; People v. Ah Lee Doon, 97 Cal., 171; Borrelli v. People, 164 Ill., 549; Mitchell v. Likens, 3 Blackf., 258; Mitchell v. Denbo, 3 Blackf., 259; Jones v. State, 3 Blackf., 37; State v. Jenkins, 32 Kan., 477; Wright v. Stuart, 5 Blackf., 120; Powell v. People, 5 Hun., 169; McCloskey v. People, 5 Park. Crim. Rep., 310; Brown v. Commonwealth, 73 Pa. St., 321.
    In Kittanning Ins. Co. v. Adams, decided under the same law as the last case, supra, the failure to seal the jury box at all was sufficient cause for quashing the array. Baker v. The Steamboat Milwaukee, 14 Ia., 221; People v. Labadie, 66 Mich., 702; Gott v. Brigham, 45 Mich., 428.
    The difference between the two laws is not slight.: Bnt if they are not great, the foregoing authorities-, show that they are fatal.
    Counsel for defendant in error also cited and com-; mented upon: ': ,
    
      Hawes v. State, 88 Ala., 37; Insurance Co. v. Myers, 59 Ohio St., 332; Hays v. Olentangy Park Co., 24 O. C. C., 354; Perry v. State, 9 Wis., 15; State v. McClear, 11 Nev., 55; State v. Collyer, 17 Nev., 275; Jesse v. State, 20 Ga., 156; Stevens v. State, 3 Ohio St., 453.
   Spear, C. J.

Whether the defendant should J^ave been tried by a jury selected under the act providing for the appointment of jury commissioners and the selection of jurors passed September 30; 1902, or by a jury summoned under the provisions of the act relating to the selection of jurors in force át the .timé the crime was committed and the prosecution begun, is the question principally argued.It was the opinion of the circuit court, and is the contention .of counsel for defendant in error here, that a jury to try the indictment should have been selected in conformity with the provisions of the latter act, and that therefore the overruling of the challenge to the array was erroneous. This contention rests upon the ground that while the act of September 30,1902, in terms repealed the former law, it did not provide that the new act should apply to pending prosecutions, and that by force of section 79 of the' Revised Statutes the old law was as to this prosecution still in force. It is urged that Barlow had a right to be tried under the law which existed at the time the prosecution against him was commenced, and that the act of September 30, 1902, did not abrogate any of his existing rights.

Two questions, therefore, arise: 1. Was it error to overrule the challenge to the array? 2. Was the overruling of the challenge prejudicial?

The difference in the two acts to which attention has been called relates to the number of commissioners to select the names to be placed in the wheel, and the persons who are to be present when the jury is drawn. Under the old law the commission for the selection of names was composed of three freehold electors and the court, or a judge thereof, must be present with the clerk and sheriff when the drawing was done; under the later act the commission was composed of four freehold electors, and the clerk and sheriff only are required to be present when the names are drawn from the wheel. The duty of turning the wheel and drawing therefrom the names of jurors is devolved upon the clerk by both acts alike, and the sheriff is required to be present by the provisions of both. If a person accused of crime has a vested right in the manner provided by the state for the selection of juries then this defendant’s rights were invaded by the refusal of the court to sustain his challenge. That such right exists is strenuously insisted upon in argument, but we find no good reason in the briefs of the learned counsel presented in support of the contention. If the change in the law made that criminal which before was not unlawful, or if the new act in any way made it more difficult for the defendant to be guaranteed an impartial jury, or more easy in any way for the state to procure a conviction, or more difficult in any way for the defendant to overturn the case made by the state against him, then there would be force in the proposition of a vested right. But no such result follows the change in the remotest manner. It wholly relates to the machinery by which the proper persons to serve as jurors are to be obtained; the qualifications of the persons selected are to be the same; all the tests of fitness and all challenges for cause are fully preserved. As well remarked by Welch, J., in Huling v. The State, 17 Ohio St., 583: “It is important to the defendant that he should not be subjected to a trial except upon an indictment found by a jury composed of good and lawful men; but, provided they are such good and lawful men, it is a matter of no interest to him in what manner they are selected and drawn. The manner of selecting and drawing jurors concerns the public rather than the parties to a cause, provided only that irregularities therein do not result in placing .in the box jurors who are disqualified. It seems to us, therefore, that the provisions of law for the.selection, distribution and drawing of jurors, should be regarded as directory, rather than as mandatory and indispensable. They were intended for public convenience, and to equalize the burden of jury service, as well as to insure the selection of competent jurors.” In that case the pleas interposed for the defendant were in abatement on account of divers alleged irregularities in the selection of the grand jury that found the indictment. The overruling of the pleas was sustained by this court, the court holding that the question could not. be made by such pleas, and added that: “Whether they set forth a good cause for challenge to the jury, need not now be decided.”

Section 79 of the Revised Statutes, much relied upon, provides that: “Whenever a statute is repealed or amended, such repeal or amendment shall iñ nó manner affect pending actions, prosecutions or proceedings, civil or criminal; and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed.” To have effect, therefore, upon a prosecution pending, the amendment must affect either the right of'a party to his cause of action or to his defense, or the remedy already existing for enforcing that right or making good that defense. It means, we suppose, that the general assembly may not, by new legislation, destroy or impair vested rights; and if it undertakes to change the remedy by which those rights are to be enforced so as to affect pending prosecutions, it must express that purpose: If we are correct in the conclusion above stated, nothing moré need be said respecting the first clause of this section, for it is clear that if no vested right of the defendant has been impaired by the change in the law then the change in no manner affects the pending prosecution. And as to the matter of remedy it cannot be said that the mere beginning .of a suit gives the party a vested right in any special form of remedy or entitles him, to have the same conducted at every stage according to the course of procedure which was prescribed by law when the suit was commenced. The rule is well settled by repeated adjudications that no one has a vested interest in any particular remedy for the enforcement of a right. The remedies which one legislature may have prescribed a subsequent legislature may modify provided a substantial and adequate remedy is left. But does the amendment, relate to the remedy at all? We think it does not. The change relates to certain processes of the law necessary to initiate and keep in motion the machinery which the law provides for the administration of justice, not the administration of justice in this class of prosecutions alone, but the general administration of justice, civil as well as criminal, while the term “remedy” within the meaning of the statute, is the means employed to enforce a right or redress an injury; that is, the legal mode for enforcing a right or redressing or preventing a wrong. To illustrate: we speak of the remedy for nonfulfillment of contract as an action, under the old practicé in assumpsit, covenant, debt, detinue, or in tort if the injury is to the individual, and the like, and under the code, the civil action embracing all of these; while in criminal prosecutions the remedy is by indictment; or information, or, in some minor offenses, by compláint before a magistrate. But in the trial of indictments the remedy no more relates to the manner of the selection of juries than to the manner in which the judge who may be called on to preside at the trial shall be selected. His relation to the interests of the party is just as important as is that of jurors, and if a party may object that the jurors empaneled to try bim have not been selected by the same jury commission that was empowered to act when the crime was committed, or that the persons required to be present at the drawing are not the identical persons who would have attended had the jury been drawn under the former law, why may he not object that the judge is incompetent to sit if it happens that he may have been, by reason of some late act of the legislature which has worked a change in the judicial subdivision, elected by a constituency in part composed of different electors from those who would have had the right to choose a judge at the time the crime was committed, or because the judge may have been chosen under an election law different from that in force at the time of the commission of the crime and the commencement of the prosecution? If this effort at fine sighting is to prevail we may next expect that some aátute and vigilant defender of “innocence” will be insisting that his client’s vested rights have been overthrown because in the appointment of the court bailiff who waits upon the jury due formality has not been observed, or because the court was held in a different building or room from that formerly, used for the holding of'court, or because the clerk has not kept his journal with the same precision and good taste as formerly, or because the court crier has. not observed the ancient formalities in opening or adjourning the court. There is no point to which absurdity may not be carried when we start on the quest of technicalities.

That the term “remedy” should be construed in its comprehensive sense rather than in the minute sense which counsel insist upon, is, we think, abundantly shown by comments of law writers on the subject. Prof. Black, in his Law Dictionary, 1019, gives this: “Remedy. Remedy is the means by which the violation of a right is prevented, redressed or compensated. Redresses are of four kinds: 1. By act of the party injured, the principal of which are defense, recaption, distress, entry, abatement, and seizure; 2. By operation of law, as in the case of retainer and remitter; 3. By agreement between the parties, e. g., by accord and satisfaction and arbitration; and 4. By judicial remedy, e. g., action or suit.” See, also, 2 Bouvier, 870; Castle’s Case, Cro. Jac., 644; Stephens v. Watson, 1 Salk., 45, and note; and Rex v. Robinson, 2 Burr., 803.

It may be added that the provision of section 7276, Revised Statutes, would seem to indicate that the selection and drawing of jurors has not been understood by our láw-makers to come within the purview of section 79. That provision is: “In all other criminal cases (meaning criminal cases other than capital offenses) the jury summoned and empaneled according to the provisions of law relating to the summoning and empaneling of juries in other cases, shall try the accused. ’ ’

Palmer v. The State, 42 Ohio St., 596, and Cincinnati v. Davis, 58 Ohio St., 225, are cited as sustaining the judgment of reversal. The question in the Palmer ease arose on the empaneling of the jury, and involved the competency of individual jurors. Nobody doubts that a party who is to be tried by a jury is entitled to a fair and impartial jury of good and lawful men. The law in force at the time the prosecution was commenced gave a wider latitude of challenge by the defendant than the amended law enacted before the trial, and this-court held that the defendant was entitled to challenge as provided in the old act. The Cincinnati case holds simply that a proceeding for the improvement of an alley begun under a proper board was properly completed under that board notwithstanding subsequent legislation gave jurisdiction over the improvement of alleys to another city board. Neither case reaches the question we have before us.

■ The judgment of the circuit court appears to have been based on the case of Bach v. The State, 38 Ohio St., 664, The question in that case was whether it was error for the trial court, against the ■objection of the accused, to cause a special venire to issue for persons to fill vacancies, the names to be drawn from the box, where the statute requires ■such names to be selected by the presiding judge. 'The trial court did not' follow any law, and this ■court reversed the judgment for that error. Doubtless the decision worked some benefit as a matter of ■discipline, for manifestly it is the duty of all courts to follow the .statutej and not to disregard it. Whether in a like case a like holding would be made by this court at this time, we need not discuss.

We are of •opinion that the changes in the jury law affect neither, the vested rights of the accused ■on the merits, nor the remedy by which those rights are to be preserved, and that the overruling of the ■challenge to the array was not error. But suppose we are mistaken in this, still it is- not apparent that any prejudice has been wrought to this defendant, and if not, the error is not one which would warrant a reversal of the judgment of the trial court. It is •only for errors .which are prejudicial that a judgment should be reversed. Scovern v. The State, 6 Ohio St., 288; McHugh v. The State, 42 Ohio St., 154. As remarked by Williams, J., in The State v. Thomas, 61 Ohio St., 444: “It may be remarked at the outset that the objections are not to be tested by the over-refined technicalities that were the outgrowth of a system of criminal laws of unreasonable severity, and a humane desire on the part of the courts to shield those charged with their violation from excessive and cruel punishment, hut by the rule of our criminal code by which defects and imperfections are to be disregarded which do not tend to the prejudice of the substantial rights of the defendant bn the merits.”

The right of everyone accused of crime to a fair trial should be secured to him, and this court, as'in the past, will insist upon this, but we do not incline to search for unsubstantial errors, or to give.undue effect to them when discovered by others. .

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.

Davis, Shauck, Price and Crew, JJ., concur.

Summers, J., not sitting.  