
    The State vs. John J. Butler.
    No forfeiture can be taken against a witness for failing to attend upon a subpcena, in which he is summoned to appear before the grand jury and give evidence; he should be summoned to appear before the court to give evidence to the grand jury.
    In this case, the scire facias recites that a subpcena had been issued and delivered to the sheriff, commanding him to summon John J. Butler to appear before the grand jury and give evidence; that the subpcena was duly served, and that said witness being called, failed to attend, and that thereupon a judgment nisi was rendered against him, &c. To this scire facias the defendant demurred; and the circuit court having sustained the demurrer and given judgment for the defendant the Attorney General in behalf the State prosecuted an appeal, in the nature of a writ of error, to this court.
    
      Andrew Hays, Att’y. Geni, for the State.
    ■ J. H. Rivers, for the defendant.
   Green, J.

delivered the opinion cf the court.

In this case, the scire faeias is bad. The subpcena set out in the sci. fa. commands the sheriff to summon the defendant to appear before the grand jury to give evidence. It should have required him to appear before the court, to give evidence to the grand jury. As it did not require him to appear in court, his non-appearance, when called, is no failure on his part, and consequently, is no ground for the judgment nisi upon which this sci. fa. is founded. The demurrer was therefore properly taken.

Judgment affirmed. 
      
      This case, by mistake, was omitted to be printed with the State cases of this Term.
     