
    Sayle v. The State.
    A plea in abatement that the names of the grand jurors who found the bill of indictment “do not appear by any list prepared by the County Court” of persons adjudged by said court qualified to serve as jurors, does not controvert the fact that the grand jury was constituted conformably to law, and is bad on demurrer.
    It is nota valid objection to a petit juror who is not summoned as a bystander that his name is-not on the list required bylaw to be made out oy the County Court. The proviso in the first section of the act of 1848 (Hart. Dig., art. 1667) is to be taken simply as a qualification of the section in which it is incorporated.
    Appeal from Titus. The appellant was convicted upon an indictment for keeping a faro bank. He pleaded in abatement to the indictment that the names of the grand jurors “do not appear by any list prepared by the County-Court” of persons adjudged by said court qualified to serve as jurors. To this-plea there was a demurrer, which the court sustained. The defendant refusing to answer over, the court’ordered the jury to he sworn to assess the punishment, to which the defendant objected, on the ground that the juror’s names were not on the list required by law to be made out by the County Court. The-court overruled the objection. The defendant was convicted qnd appealed.
    
      J. II. Rogers, for appellant.
    I. The objection that grand jurors have not been selected and summoned as required by law may well be taken by plea in abatement. (The State v. Williams, 5 Port. R., 130 ; 1 U. S. D., p. 6, sec. 430; see also 5 Port. R., 484; 1 U. S. D., p. 7, 153 ; Knight v. Stewart, 5 Blaekf. R., 120; 2 U. S. D., p. 256, sec. 74; State v. Herndon, Id., 75; 2 U. S. D., p. 260, se<’ 164; and see in particular State v. Conner, 5 Blaeld. R., p. 325; 2 U. S. D., p. 2G0, sec. 1G5; State v. Burks, 9 Ala. K., 9; 1 U. S. D., p. 327, see. 29; Phillips’ Ala. Dig., p. 38G, secs. 26, 32.)
    II. The intent of the act of 184G (Hart. Dig., p. 509) and of the act of 1848, amending the 17th and 19th sections thereof, (Hart. Dig-., p. 514,) is, that no person shall be considered competent to serve on any jury, civil or criminal, whom the County Court has not judged “ well qualified t<yserve as juroror, in the words of the act of 1848, above referred to, “no person shall be considered competent to serve on any jury, civil or criminal, whose name is not enrolled upon the list required to be kept by the County Court,” which is the same as to say that no person shall be considered competent to serve on any jury, civil or criminal, whom the County Court has not judged to be qualified, for tlie list embraces those who have been so judged and those only.
   IVheeleR, J.

The plea in abatement does not controvert tho fact that the grand jury was constituted conformably to law. It avers simply that at the time of pleading the names of the jurors “do not appear by any list,” &c. This is not deemed a valid objection to the indictment. The list directed to be kept may have been lost or destroyed by some casualty after the jury was constituted and the indictment found. The omission to preserve it would not go to the validity of an indictment found by a competent grand jury constituted conformably to law.

In support of tho objection to the petit jury we are referred to the 1st section of the act of the lGt-h of March, 1848, and particularly to the language of the proviso.

Tho section has reference alone to a case in which, for some one of tho cases there stated, it may have become necessary to summon jurors from (lie bystanders, to whose competency the objection may lie taken. The proviso is to be taken simply as a qualification of the section" in which it is incorporated. It does not contemplate or appl.y to a ease like the present, where the jury in attendance had been rogn ally summoned and impaneled.

The objections to the judgment are not, wc think, well taken.  