
    No. 267.
    The State of Louisiana vs. John Hinson and Jesse Martin.
    Where an indictment is found during a term of court, and no further proceedings are had except the arrest of defendants and their discharge on bond to appear at a succeeding term, a motion made on the first day of such .succeeding term to quash the indictment on the ground that the clerk had not been sworn as a member of the jury commission, is not too late, on proof that the defect "was only discovered at that date.
    
      A PPEAL from the Second District Court, Parish of Webster. Boone, J.
    
    
      J. Henry Shepherd, District Attorney, for the State, Appellant:
    1. The statute provides that all objections to the manner of drawing juries, or to any defect that can be pleaded against any array or venire must be urged the first day of the term, or all such objections shall be considered wajved. Sec. 11, Act 44 of 1877.
    2. The want of capacity of a jury commissioner is a matter of record in the court, easily obtained by a bare inspection of the record. State vs. Tisdale, 41 An. 344.
    3. The simple denial under oath of the want of capacity of a jury commissioner is insufficient if the accused had abundant opportunity to examine the record and prepare his defence prior to the motion to quash. The accused is bound to use due diligence to discover defects, which must be urged limine. State vs. Watson, 31 An. 379; State vs. Jackson, 36 An. 96; State vs. Tisdale,41 An. 344.
    4. Where an accused has ample time to inspect the record, and abundant opportunity to advise with counsel eight months prior to his motion to quash, although it bo the first day of the term subsequent to his appearance in court, and the accused is out on bond, the objection to the capacity of the jury commissioner is not seasonably made. State vs. Ashunth, 41 An. 685; State vs. Sterling, 41 An. 681.
    
      Drew & Stewart and Watkins & Watkins for Defendants and Appellees:
    1. The clerk of court is required to take a special oath as jury commissioner, and when he participates in drawing the venire without having taken such an oath, it vitiates an indictment found by a grand jury drawn from such a venire. Act No. 44 of 1877; State vs. Williams, 30 An. 1028; State vs. Vance, 31 An. 398; State vs. Bradley, 32 An. 402; State vs. Thompson, 3? An. 879; State vs. Conway, 36 An. 350; State vs. Strickland, 41 An. 513.
    2. Clerk is a competent witness to prove the want of proper qualification by. State vs. Ainsworth, 41 An. 683.
    
      3. A motion to quash for this reason will lie if seasonably made, and is in time if made before trial and as soon as the defect complained of* was discovered. State vs. Bradley, 32 An. 402; State vs. Conway, 35 An. 350; State vs. Strickland, 41 An. 513.
    4. When the crime was committed after the first day of the term, the motion is in time if made as soon as discovered, and before trial. State vs. Bradley, 32 An. 302; State vs. Conway. 35 An. 350; 41 An. 513-679.
   The opinion of the court was delivered by

Fenner, J.

The State appeals from a judgment quashing the indictment on the ground that the clerk of court, who acted as jury commissioner in the drawing of the venire from which the grand jury finding the bill was chosen, had not taken the oath as such commissioner as required by law. It is fully proved that he had not taken the oath, and it is well settled that such omission, if seasonably urged, invalidates the venire and vitiates indictments returned by a grand jury drawn therefrom. State vs. Strickland, 41 An. 513; State vs. Oonway, 35 An. 350; State vs. Bradley, 32 An. 402.

We find no merit in the State’s contention that the motion to quash was made too late. The indictment was found at the February term of the court, and no other proceedings were had at that term except the arrest of the defendants and their discharge on bond to appear at the following September term. On the first day of the September term the motion to quash was filed, and the evidence shows that the defect was only discovered at that time.

In Strickland’s case (41 An. 513) we sustained the seasonableness of such a motion to quash, though not made until after arraignment and plea, on proof that the defect, which was not apparent on the face of the record, was not known to defendant or his counsel until after plea, and was urged as soon as discovered.

This decision fully covers and sustains the ruling of the judge a quo.

Judgment affirmed.  