
    Bach v. State.
    Upon the trial for a capital offense the first thirty-six persons summoned who answer to their names, and who are without the disqualifications named in sections 7268 of the Revised Statutes, constitute the panel from which the jury for the trial of the cause is to be chosen ; but if so many of this number be set aside on challenge as will not leave twelve persons competent to serve, the vacancies so caused must be filled in the manner directed by section 7275, as amended, 78 Ohio L. 181. And it is error for the court, against the objection of the prisoner, to order a special venire to issue for persons to fill such vacancies whose names are to be drawn from the jury box.
    Error to the Court of Common Pleas of Wood county.
    The plaintiff in error was indicted and convicted in the court of common pleas of the crime of murder in the first degree, and sentenced to suffer death.
    At the trial, while a jury was being impaneled, and thvrty-fiue men having the qualification of jurors had answered to their names, the accused moved the court to have the panel filled by drawing from the box a sufficient number of names ; the court thereupon ordered twelve ballots to be drawn from the box and directed a venire to issue for the persons whose names were drawn. Thus the requisite number of thirty-six was obtained. This number was exhausted by challenges, peremptory and for cause, and also the remaining names upon the special venire. The court thereupon, against the objection and exception of the accused, ordered another special venire to issue for twenty additional names to be drawn from the box. By this means the panel was filled. The accused, having exhausted his peremptory challenges, challenged one Amos Twine, one of the twenty for whom the special venire had been issued, for cause that he had not been properly selected to serve as a juror, but the court overruled the challenge and permitted said Twine to serve as a juror upon the trial. To this the defendant excepted.
    
      E. T. Emm and J. A. Shannon, for plaintiff in error.
    
      James V. Troup, prosecuting attorney, for defendant in error.
   Longwobth, J.

The method for impaneling juries for the trial of capital causes is provided by sections 7267, 7268, 7269, 7270, and 7275 of the Revised Statutes; the last named section having been amended. 77 O. L. 181. Sections 7267 and 7268 provide for the summoning of thirty-six persons, having the qualifications of jurors, who are to constitute a panel from which to select a jury for' the trial of the cause. Should thirty-six such persons not be present, a special venire may be issued by the court of its own motion, and, upon motion of defendant, shall be issued, for a sufficient number to make the full panel of thirty-six. This is directed by section 7269.

From this number so obtained, the petit jury is selected ; provided a sufficient number remain after all challenges, peremptory and for cause, have been exhausted. Should this, however, not be the case, all vacancies so caused must be filled in the manner.pointed out by section 7275, as amended, either from the bystanders, or, if demanded by the accused, by a special venire containing names selected by the presiding' judge.

That the jury shall be chosen as provided by statute, the accused has .a perfect right to insist; and it was clearly error on the part of the court, against his objection, to order the panel filled by persons whose names were drawn from the box.

Judgment reversed.  