
    The State v. G. W. Foster.
    Alienage or other disqualification of a grand juror may be pleaded in abatement of an indictment. (Note 15.)
    The ineompeteney of a single grand juror vitiates an indictment, but unless the want of qualification of tin* juror is apparent upon the face of the indictment or upon the record it cannot be taken advantage of by motion to quash, but must be pleaded in abatement; and it is necessary that the plea should set forth sufficient to enable the court to give judgment upon it on demurrer.
    Appeal from Nueces. An indictment was preferred against the appellee, who moved to quash it on the ground that certain of the grand jury by whom it was found were aliens. The court entertained the motion and heard evidence touching the qualifications of the jurors, and it appearing that one of them was not.'a citizen of the United States or of this State quashed the indictment. The Slate appealed.
    
      Attorney General, for appellant.
    All the authorities cited Iw appellee except the case of the State of Tennessee v. Duncan, 7 Yerg. R., 271, will be found to go only to the extent of showing that men not having the required qualifications, among which is alienage, are not competent jurors, without further touching the question here presented of “whether or not the incompetency of “a grand juror can be inquired into in any way after indictment found and “the indictment bo avoided for this cause.” The excepted case (7 Yerg., 271) is directly in point on this question and stands against the appellant, hut it will ho found that. .Judge Catron rests the opinion of the court in that case mainly on Statute 2, Henry 4, Chap. 9, which he quotes, stating the point to have been a doubtful one at common law, and that statute was in force in Tennessee in this wise : Tennessee adopted the statutory law of North Carolina in force at the time of their separation, and North Carolina had adopted, so far as they were adapted to her situation, all the statutes of England “in force and use” at the time of her settlement, (4th year of James I,) of which this was one.
    •. Against this authority — of doubtful application in this purely common-law discussion. — I will cite, 1st, the course of decision of the, State of New York upon this question as at common law purely, ¡is shown in the twice-considered case of People v. Jewett., to bo found in 3 Wend. R., 314; and 2d, Boyinton v. State, 2 Port. It., 100, is expressly in point also against the opinion of Judge Catron, and so is the course of adjudication in Massachusetts. (9 Mass. R„ 107.)
    The dicta of elementary writers to the contrary will be found, I think, invariably to have British statutes for their foundation, whatever language they may employ.
    
      IS. liendre, for appellee.
    I. The only questions presented by the record are — ■ 1st. Whether the alienage of a member of the grand jury will vitiate an indictment found by it.
    2d. Whether a motion to quash was the proper mode of attacking air indictment for a defective organization of the grand jury.
    II. As to the first point see 7 Yerg. R.', 271; 1 Chit. Cr. L., 307; Bae. Abr., Juries; State v. Bennett, Mart. & Yerg. R., 135; G Johns. R., 332; 1 Bao. Abr.. Alien.
    III. As to the second point, the technical rules of common-law pleading are not applicable, for they, have been so modified by our statutes as to sanction any mode by which illegal proceedings may be brought to the notice of the court. The object, of all pleading is a just apprehension of the rights of parties and the remedy of wrongs in the clearest and most speedy manner possible. If the indictment in this'case be illegal nothing more could be sought than to bring this illegality to the knowledge of the remedial power, and if this could be accomplished as well hy motion as by plea, which is‘to be preferred?
    Note 15. — .Tackson v. Tho State, XI T., 2G1; Vanhook v. The State, 12 T., 252; Stanley v. The State, lli T., 557; The State v. White, 17 T., 212.
    It can certainly make no difference whether the defect of the indictment were latent or patent, for in either case it, must he, void and inoperative. If there were technical informalities apparent on the face of the indictment it would he bad on motion to quash. If it were void ab initio, as having been found by an unathorize.d tribunal, it certainly would not require a niore circuitous and formal idea to vacate it. But this is not necessary oven under the strict rules-of common-law pleading. (2 South., 539; 2 Gallis. B,., 364; 2 Va. Cas., 20.)
   IVheeler, J.

The decisions in different Stiit.es are conflicting on the question whether, after indictment,found, the defendant can take advantage of the incom-peteucy of any part of the grand jury who found it. In Massachusetts and Mew York til© doctrine seems to he that; objections to the personal qualifications of grand jurors will not affect the validity of the indictment after it, lias been accepted and filed in court. (9 Mass. R., 107; 3 Wend. R., 314.) This, however, lias been doubted in Massachusetts. (2 Pick. R., 563.) The same rule appears to have been adopted in an early case in Alabama. (2 Port. R., 100.) But the question lias since been determined otherwise in that State, (5 Port. R., 484,) and in Virginia and Tennessee it is the settled law that if an indictment he found by a grand jury, one of whom is an alien or otherwise disqualified, the disqualification may be taken advantage of, and the indictment maybe avoided by plea in abatement. (2 Va. Cases, 20; 1 Grattan, 556; 7 Yerg. R., 271.) Such also is the English law. (2 Hale, 155; Bac. Abr., Juries, A; 1 Chit. Cr. L., 309.) It is true there is the statute of II I-Ienry 4, Ch. 9, which is referred to for the rule of the law upon this subject in England, but the statute is probably but declaratory of the common law. It was the right of the accused at the common law, and it is his right under the, constitution and laws of this State, to have the question of his guilt determined by the concurring decision of two competent juries before lie can lie condemned to punishment for any capital or infamous crime. The common and onr si atute law require the interposition of a competent grand jury hy way of presentment or indictment before the accused can lie required to answer to the charge of any offense above the grade of a common misdemeanor. But, this right’nmst be frequently denied him in practice unless lie may take advantage, of "the disqualification of a grand juror by pleading it to t.lie indictment. For it must frequently happen that persons aee.use.fi especially of minor offenses will not have been aware, that their conduct was the, subject of investigation by a grand jury until after the indictment lias been found. An incompetent or prejudiced jury may find an indictment against an innocent man who could have had no knowledge that lie was to be made, the, subject of their .animadversion. In such cases tile accused would have no opportunity afforded of objecting to incompetent jurors by challenge. It seems, therefore, tliat to insure to the accused the right intended to be secured to him by the law lie must be permitted to plead to the indictment the alienage or oilier disqualification of a grand juror.

But unless the want of qualification of the juror is; apparent upon the face of the indictment or upon the record it cannot be taken advantage of on motion to quash, but must be pleaded in abatement. And it is necessary that the plea should set forth sufficient to enable the court to give judgment upon it- on demurrer. (4 Leigh R., 667; 10 Yerg. R., 527.) It was an error iu the court. to entertain the question of the qualification of the jurors on a motion to quash tlie indictment, for which the judgment must bo reversed and the cause, remanded.

Reversed and remauded.  