
    English v. The State.
    The caption forms no part of the indictment; it is not ossonti.il; and therefore no defects in it can bo made a ground of objection to tho indictment. Oar practice differs in this respect from tho English practice.
    It is nob necessary that an indictment should-show upon its face by what grand jury it was found; that fact appears from the records of the court and is judicially known to the court.-
    It is not necessary to bring up the record of the proceedings previous to the finding of the indictment, where tlie same are not excepted Jo. And where the previous proceedings aro not shown by the transcript, regularity will bo presumed.
    Appeal from Polk. The appellant was indicted at (ho Fall Term, 1848, of the District Court, for playing- at cards in a public place. The indictment commences thus: “ Tlie State of Texas, county of Polk, in the District Court,” &e. The, grand jurors in and for tlie county and Slate, being- elected, tried, impaneled! sworn, and charged to inquire in and for the body of the county aforesaid, upon their oath present,” <£c. The defendant moved the court'to quash the indictment. This motion was overruled, and there was a conviction; upon which the defendant moved in arrest of judgment, on the following grounds, viz:
    “ 1st. The indictment does not set forth in what county the grand jurors were elected, impaneled, tried, and sworn.
    ‘•2d. It doe -, not allege in what county (ho offense was committed.”
    The moll-m was overruled and the defendant appealed.
    
      Voahi'm l\" Taylor, for appellant.
    The venue of the grand jury is not stated. (I!ex v. KihPny,' 1 Saund. B., 30S; 1 Ciiit. O. L., odd; 2 Hawk. P. C., cl). 25, sees. 1C, 17, lit!; 2 Hale P. C., 1(W; The State v. cClni'O, 1 Yerg. It., 206.) Tin* last e;t.*” is especially in point, and in its discir-lon Judge [JiSffl] White throws much light upon tlie question. The caption, though no part of the indict me.nt, should state tlie time aud place when and where the indictment w-as found.
   Whbeleií, J.

The error assigned is (lie refusal of the court to arrest the judgment for tlie reasons stated in the motion.

The second ground embraced in the motion is unsupported by tlie record, and is not now insisted on; but it is insisted that the judgment ought tobe reversed upon the first ground; that is, that the indictment does not state in what county the grand jurors were elected, impaneled, sworn, &c.

The objection to the indictment now urged is founded on the omission in the caption, after tlie words “comity and State,” of the word “aforesaid,” or some equivalent expression, by way of reference to the venue." Thus, instead of saying, “The grand jurors in and for tlie county and State, being elected,” &e., it is insisted'it should be, “The grand jurors in and for the county and' State aforesaid, being elected,” &e. The omission was doubtless accidental, and the question is whether it is fatal to the indictment. ■ It occurs in the caption, which is properly no part of the indictment. It therefore cannot constitute a valid objection to the indictment itself, nor to the record, unless it is necessary with us, as in England, that the indictment should have prelixed a caption containing a historical statement of the proceedings had in Llie court below previous to and upon tlie finding of tho indictment, and that it should ho embodied in the record brought to this court. This has never been required in practice in this country, and is unnecessary.

The English iwactice is .thus succinctly stated by Judge Catron, in the case of McClure v. The State, (1 Yerg. R., 216 :) “An indictment is found in some court, inferior to tlie King’s Bench; application is made, before the trial is had below, to the Court of King’s Bench to'send down a certiorari to bring- up the cause and try it in that court. The writ is sent down commanding tlie original record to bo sent np. (9 Vir. Abr., 517.) Of course tlie indictment alone is sent; bnt to show that it has been regularly found, something further must be made to appear to the court above. This is the business of tlui enptiou, which is a historical statement made by the clerk of the court below of (he proceedings had in his court previous to the finding of Die indictment, and which is the. return to the writ of certiorari. The same practice lias been pursued where the trial has been had below and the cause is brought up for judgment; or where verdict and judgment have passed below and (he record is hrolight np to examine errors upon a judge’s report, similar to our bill of exceptions.”

The caption in the English practice is the historical statement by the cleric of the proceeding's, and is no part of the record. (1 Saund. R., 399.) When it is received in tlie King’s Bench it is entered of record, to render the. proceedings regular in form in that court; ami if defective, it may be.amended at anytime. (Ib., n. 2.) Under onr law of procedure everything, from the impaneling of the grand jury to the final judgment inclusive, transpires in the same court. And from the final judgment an appeal lies to this court. This brings up a transcript of (ho record of the court made in (bat particular case. This must show that the, party was put upon his trial by indictment or information, (Const., art. 1, sec. 8,) and that his trial and conviction were regular and legal. The proceeding previous to tlie finding of'the indictment are of record iu the court where idle trial is had, and are'subject to tlie observation of the parties anil the judicial cognizance of the court. If any irregularity exists, it is competent for tlie parties to bring it to Die attention of (he court, .and to have it presented by tlie record for revision in this court. But when •the proceedings previous to the indictment are not excepted to below, Diere, is no necessity to bring up the record of them, which has no more connection With that particular indictment than with any other found during the term. And where the previous proceedings are. not shown by the transcript, regularity will be presumed. (1 Yerg. R., 218; 1 Saund. R., 248, n. 11; 2 Hawk. Ch., 25. sec. 17; 4 Bac. Abr., tit. “INDICTMENT,” 572.) In the present case, then, the record of the impaneling of the. jury and the finding of the indictment was before the District Court; ami that court judicially knew, from an inspection of'its own records, that the indictment was found by a grand jury of the State of Texas, legally “impaneled, sworn, and charged to inquire in and for the body of the county of Rolk.” It was not, therefore, necessary that it should be "formally stated in Die indictment that the Slate and county mentioned were tlie Slate of Texas and county of Bulk; nor that the statement in the caption of the county and State should have been connected with and referred to the venue by the word “aforesaid” or otherwise.

Judgment affirmed.  