Ark. Code Ann. § 16-89-109 (2020)
Oath of jury members
When a jury of twelve (12) qualified jurors shall have been duly impaneled, they shall be sworn substantially as follows:
“You, and each of you, do solemnly swear, that you will well and truly try the case of the State of Arkansas against A. B., and a true verdict render, unless discharged by the court or withdrawn by the parties.”
History. Crim. Code, § 219; C. & M. Dig., § 3170; Pope's Dig., § 4006; A.S.A. 1947, § 43-2109.
Case Notes
Constitutionality.
The oath prescribed for the petit jury by this section is not in violation of the Constitution; it in effect requires the jury to try the case according to the law and the evidence. Palmore v. State, 29 Ark. 248 (1874).
Delay in Swearing.
Evidence insufficient to show that delay in swearing jury prejudiced defendant's rights to a jury trial, fair trial or due process. Cooper v. Campbell, 597 F.2d 628 (8th Cir. 1979), cert. denied, 444 U.S. 852, 100 S. Ct. 106 (1979); 444 U.S. 979, 100 S. Ct. 479, 62 L. Ed. 2d 69 (1979).
Jeopardy.
When the jury is finally sworn to try the case, jeopardy has attached to the accused, and when, without the consent of the defendants, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except only in cases of “overruling necessity.” Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).
Mandatory Nature.
The jury in criminal cases must take this oath regardless of the grade of the crime; the general oath administered to the regular panel will not suffice. Chiles v. State, 45 Ark. 143 (1885); Tong v. State, 169 Ark. 708, 276 S.W. 1004 (1925).
Record.
Where the record fails to show that the trial jury, in a felony case, were sworn in that case, a judgment of conviction will be reversed. Lawson v. State, 25 Ark. 106 (1868); Barbour v. State, 37 Ark. 61 (1881).
Where the record shows that the jurors were sworn, but the form of oath administered is not set out in the entries, it will be presumed by the Supreme Court, in the absence of any showing to the contrary, that the oath was administered to the jurors in proper form. Hurley v. State, 29 Ark. 17 (1874); Lay v. State, 42 Ark. 105 (1883).
If the form of oath administered is entered of record, and appears not to be in substance and legal effect the oath prescribed by law, it will be error. Anderson v. State, 34 Ark. 257, 1879 Ark. LEXIS 34 (1879).
Fact that jury was sworn must be shown by record. Tong v. State, 169 Ark. 708, 276 S.W. 1004 (1925).
Nunc pro tunc order showing the fact in the judgment that the jury was sworn as provided by law, entered subsequently to the filing of original transcript in the Supreme Court, was proper. Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940).
Separate Swearing.
When the regular panel is exhausted, and the deficiency of jurors is supplied by talesmen, they may be sworn separately, as they are selected. Hurley v. State, 29 Ark. 17 (1874).
Time to Object.
A defendant in a misdemeanor prosecution waives his right to object that the jurors were improperly sworn unless he objects before going to trial. Ruble v. State, 51 Ark. 126, 10 S.W. 23 (1888).
After verdict, it is too late to object that the jurors were not sworn in accordance with the statute. Meadors v. State, 130 Ark. 471, 197 S.W. 1153 (1917).
It is not error on a charge of manslaughter to be tried by a jury of eleven men, where appellant not only agreed in open court to a jury of eleven, but made no objections, saved no exceptions and did not assign this as error in his motion for a new trial. Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953).