O'Brien

One point presented by the brief of appellant’s counsel is, “that the defendant was tried by at least one, if not two, jurors who were never summoned as jurors in the case.”

The two jurors who are alleged to have sat upon the jury without being summoned were G. H. Ganivan and Theo. Zina. Among the names of those duly summoned, the two which most nearly resemble the two above mentioned were G. H. Garwin and Theo. Zen a. How a person whose name was not upon the list of those summoned by the sheriff could be called, accepted, sworn, and permitted to sit as a juror in the trial of a case is not explained. Nor is it shown that the person who sat as a juror was not the person summoned, or that the apparent difference in the names was 'not caused by a clerical or typographical error.

We think the return of the sheriff upon the venire constitutes no part of the record, and if not, it is not properly before us. The judgment roll, which will constitute a record of the action, consists of,—

No one wbll contend, we think, that the return of the sheriff upon a venire could be included in either of these enumerations, unless it be within the second, as a part of “ the minutes of the trial.”…