
    The State against Burket and Boatright.
    ?oim?eíhaiilnge¡ ^ sworn. “¿TVí® men, it is found, st°mceont”f‘ “ ttafthiTlli cannot proceed, bhe%emSdmfor SS t™'aid!w have been put oa preparations were made there* for.
    The prisoners were indicted for horse-stealing, and on the last day of the last Term at Gran-by, were brought up before Johnson, J. for trial, This day, early in the Term, had, at the request of . .. the prisoners, been assigned for their trial. They were arraigned, and pleaded not guilty, and, on ° * calling the panel, thirty Jurors only appeared; of these the prisoners, who had determined to be x b tried together, challenged twenty, peremptorily, i « i .. . and one for cause, as was also one on the part of * the state, so that there were only eight accepted, who had been sworn in the order in which the panel was called. The Cofirt the nordered that a sufficient number of talesmen should be drawn to complete the Jury, but, on opening the box, it was found that it did not contain a list of tales-men, and the probability is, that none had ever been furnished by the fine collector, so that it became impossible to complete the Jury; those that were sworn were therefore discharged, and the prisoners remanded to jail. And a motion is now made to discharge them, on the ground, that having gone into trial, (by which I suppose is meant the swearing of the eight Jurors,) it ought to have progressed; and that without the consent of the prisoners, the Jurors sworn could not have been discharged, or the trial arrested, and that, therefore, the Court below ought not to have remanded, but discharged them. . X
   The opinion of the Court was delivered hy

Mr. Justice Johnson.

The ground taken, as well as the arguments and authorities offered in its support, are predicated on the mistaken supposition that the trial had been entered into, or, in the words of the brief, that the prisoners had been put on their trial. At what particular period, in the progress of the arraignment and other, formalities usual, and perhaps necessary, preparatory to a trial, the trial may be said to be entered into, or at which it may be said the prisoner is put on his trial, may be a question of some nicety, and it appears to me to be wholly unnecessary to consider it here; for it must appear evident, that a prisoner cannot be put on his trial, unless he is before a Court in every respect competent to try the offence with which he is charged. How is the fact in this case ? One of the members of the Court, indispensably necessary to the trial of this offence, a Jury, was wanting. To constitute a Jury, every lawyer knows that twelve lawful men are necessary, and that without this number no Jury can exist; the eight sworn, although they constituted so many constituent parts, were not a Jury, and, therefore, were incompetent to pronounce a verdict; and for the reasons stated, it was impossible to supply the deficiency. The prisoners could not, therefore, be said to have been put on their trial, and consequently' are not entitled to the benefit of the rule insisted on in their behalf.

Bay, JYolt, ColcocJc, Gantt, and Cheves, J. concurred.  