
    
      The State vs. Bennett Dozier.
    1. Where a prisoner was indicted and convicted for murder, and it appeared that the writs of venire, by which the grand and petit jurors were summoned, were without the seal of the court, judgment was arrested.
    2. A venire, not under seal, is no writ, and is not authority to the sheriff1 to summon the jury.
    3. The writs of venire, for both juries, are parts of the record of conviction.
    
      Before Wardlaw, J. at Camden, March Term, 1843.
    The defendant was indicted for the murder of John Pettigrew. The case detailed by the evidence was briefly as follows;
    
      On Tuesday morning, 27th December, 1842, Dozier was drinking at the house of John duinny, and was heard to say that he meant to whip Petigrew. About ten o’clock of that morning, P. at the distance of one hundred yards from Cl’s, house, hallooed fora gun, no other person being in sight of the house; and thence immediately walked to the house, with his hands before him. When he reached the house, he was found to be holding a large portion of his intestines in his hands ; was helped in and laid upon a bed, in a small room. About ten minutes afterwards, Dozier came along the same way that P. had come, set a gun which he had, down by the door; went into the house, after a short stay came out, took up his gun and walked away. Three witnesses state that D. was not then drunk, although they knew that he had been drinking, and he seemed somewhat in liquor.
    The testimony of Miss Elizabeth McLester was as follows : “I was at Q,’s. when P. came with his entrails out. When D. came, he walked into the room, where Mrs. Q,. and myself only, were with P.; he laid his hand with the open knife in it upon the wound gently, and attempted to touch it with the other hand; P. said, “go away, you have ruined me, for nothing.” D. said, “John, you have done me enough.” Mrs. Q,. told D. to go away, and pushing him as he turned, he was out of the small room, and went off. D. did not appear to me to show any intention to hurt P. then ; he seemed intoxicated; was so much so early in the morning as to mistake me, whom he knew well, for another person, and I saw him drinking afterwards. There was blood on D’s. hand as he went out, but he may have got it from touching the wound, as I discovered none when he came in. The knife was such as was produced in court— (a stout buckhandled pocket knife, such as farmers often carry, which had been double bladed — the little blade was broken out; the large blade was stout, about two and a half inches long, three quarters of an inch wide, and sharp pointed.) I dont know that P. had been drinking; he seemed to be in great pain, and vomited soon after drinking some water.
    After some hours, D. was found at his house; when told by the constable that they had come to take him, he asked how P. was, and said he had done it, and was sorry for it. As he was carried on, he said he wished P. was as well as he was, and lie was back with his family; that he cared nothing about his own life, but for his wife and child. He said it occurred from a spree the night before; that P. had protected some negroes he wished to whip, but he gave no account of the circumstances.
    The knife produced was taken that day from D’s pocket.
    A physician was called to see P. the same day ; replaced his intestines and directed him to be kept entirely still, prohibiting his removal. The wound was about six inches long, on the left side of the abdomen, made by a cutting instrument; no incision was visible upon the intestines which protruded; examination of any other portion of the ■intestines was deemed improper; the portion next the knife might not have protruded ; the wound was considered dangerous, but not necessarily fatal; there was great and unintermitted pain, and the death, in the opinion óf the physician, was caused by the wound.
    Notwithstanding the instructions of the physician, P. was, the same day he received the wound, removed to another house a mile distant; no medicines operated on his ■bowels; great inflamation ensued, and .he died Sunday morning, 1st January, 1843.
    On Friday morning, when he seemed to have no hope of living long, and was in full possession of his senses, he made a solemn declaration, in substance, as follows: “I was coming from Owen’s, my coat buttoned tight, and no stick in my hand; I saw Dozier coming to meet me, with a rifle on his shoulder; when within about twenty-five yards of me, he hallooed that he intended to whip me; I said, “I reckon not, Dozier, I have not, done any thing for you to whip me for.” He said, damn you, I will show you ; put down his gun and shot bag, and walked on, and laid off his hat and coat; I walked towards him, and he walked towards me, until he came near, when he jumped on me, and immediately thrust his knife into me; I saw no knife until it was in me ; I climbed over a fence, and as I got down, my guts fell out; I caught them up in my hands and went to Qxünny’s; Dozier followed me into the room, caught hold of the bed clothes and pressed on the wound so as to hurt me, and I said to him, “for God’s sake let me alone, you have given me my death wound; and Mrs. Q,. put him out.” The impression produced by P’s. declaration, was that D, when he went into the room, intended further injury, but was prevented by Mrs. Q,uinny, and that P. did not think D. in earnest when D. said he would whip him, for he was conscious of no provocation given, and that he made no attempt to strike Dozier; no signs of injury to D. were spoken of. One witness said that P. generally walked with a stick, and that he did not remember having ever seen him without a stick.
    Dozier is stout and of ordinary size, P. seemed to be equally stout, or more so; the witnesses did not, as seemed to be expected, consider P. as quarrelsome or inclined to fight, and one who was most intimate with him, said that he had never seen him in an affray, and had seen him intoxicated but once.
    The presiding Judge submitted the case to the jury, with a general exposition of the law of homicide, applicable to it, and without any distinct expression of opinion as to the facts ; although it appeared to him, taking into consideration the dying declarations, a plain case of murder fully proved, and even without those declarations, a case of murder where the malice was otherwise sufficiently established, or if not, must be presumed, from the fact of killing, unaccompanied by any mitigating circumstances.
    The jury returned a general verdict of guilty.
    The prisoner appealed, and moved in arrest of judgment, and for a new trial, on the grounds annexed:
    1. Because the verdict on which the judgment of the court is asked to be pronounced, is on the finding of a grand jury, found at a court of general sessions, held at a place called Kershaw court house; and it is submitted that such finding cannot be the act of the grand jury drawn at the fall term of the court, 1843 ; for that grand jury is required by law to be impannelled at Camden, and at no other place.
    2. Because it does not appear by the record, that the said indictment was found by a grand jury for Kershaw district, and the said verdict by a petit jury, convened according to law.
    
      3. Because the grand jury who found the said indictment, and the petit jury who found the said verdict, were convened without a venire ; the supposed venires by which they were summoned, had no seals to them; and a writ without the seal of the court, is no venire.
    
    4. Because the said record is in other particulars informal, insufficient and void, and the legal judgment of the court cannot be pronounced upon it.
    And if overruled in the above motion, defendant will move for a new trial, on the grounds,
    1, That from the facts and circumstances given in evidence, the crime of the defendant cannot exceed manslaughter.
    2. That the verdict of the jury is against the law and evidence.
    Smart, for the motion.
    On the first and second ground, cited 2 Hawkin’s P. C. 350; Cro. Jac. 277; Act of 1842, 221. The case from 2 McCord, 301, it was contended as to the amendment of the caption of an indictment, was not law. A mere clerical mistake may be amended at any time, but after the term has expired, the original caption can not be amended. Cited 2 Lord Raymond, 968 ; lb. 518; 6 Mod. 273; lb. 58 ; 1 Hawkins P. C. 244; Cro. Jac. 502, 276; 2 Strange, 843; 1 Salk. 47 ; 4 Burrows, 2449; 1 Saunders Rep. 249, (note 1.)
    As to the 3d and 4th grounds, cited 1 Chitty’s Crim. Law, 412, 506, 509; 2 Hale’s Pleas Crown, 260; 2 Hawkins, 561; Bac. Ab. (Jury.) Cro. Jac. 527; Cro. Car. 448; 18 J. Rep. 212. The statutes of South Carolina require a venire. Cited 3 Stat. at Large, 275 ; 4 lb. 430 ; 7 lb. 253, 293, 330; Acts 1839, p. 74, sec. 10 ; 13 Car. 2; 2 Stat. 516.
    
      Galdwell, Solicitor, contra.
    As to the caption of the indictment, cited Archbold, C. P. 26 ; lb. 39, 40 ; 3 Camp. Nisi Prius, 77 ; Act, 1842 ; 7 Stat. at Large, 339, 304, 297; 7 Stat. 283; lb. 260; Archbold, C. P. 96.
    As to the third ground of appeal, cited 1 Brev. Dig. 449, 342, 223; Acts 1839,110, p.; 1 Brev. Dig. 455 ; 2 Hill, 381; 16 State Trials, 303 ; Cro. Eliz. 257-9 ; lb. 215 ; Acts 1839, sec. 16 p. 112.
    
      
       The defect in the venires was not discovered till after the grounds of appeal were served, and this ground has been since added, with the consent of the Solicitor.
    
   Curia, per

O’Neall, J.

In this case, it is only necessary to consider the prisoner’s third ground, in arrest of judgment. For that will avail him. In 2d Hale’s Pleas of the Crown, 260, it is said, “the venire facias, as all other process of that court, (the King’s Bench,) issues in the. King’s name, under the seal of the court, and that of the Chief Justice, and always ought to bear test after the issue joined between the King and the prisoner.” The description of process to compel the attendance of jurors, in 2d Hawk. P. C. book 2, chap. 41, sec. 1, is very much like the course of our own practice in relation to the venire. He says, “it is agreed that justices of jail delivery may have a pannel so returned by the sheriff, without any precept or writ; and the reason given for it is, that before their coming, they always make a general precept to the sheriff, on parchment, under their seals, to bring before them, at the day of their sessions, twenty-four out of every hundred, &c. “to do those things which shall be enjoined them on the part of the King,” <fec. This is a general venire for the term, and is so far like our’s, and is only different, that it has no pannel annexed; and our’s, according to our jury law, has. It is to be observed, that this general precept is under the seals of the justices, and without that, would be bad. The argument is, therefore, irresistible, even from this authority, which is more favorable to the State than any other, that a .summons of the jury by virtue of a pretended writ of venire, not under seal, cannot be good.

The jury law of 1731, sec. 4, directs the manner of drawing a jury, and “that a pannel containing the names of the jurors, shall be annexed to the writ of venire facias, to be is- , sued for summoning the said jurors.” To be a writ, it must be under the seal of the court, (Jac. Law Die. title Writ,) and hence, therefore, a venire not under seal, is no writ, and is not authority to the sheriff to summon the jury. What effect the want of a venire not under seal, for both the grand I and petit jury, upon the trial of a prisoner convicted of a I capital felony would have, the case of the People vs. McKay, 18 J. R. 212, is full to the point, that it is a good ground I to arrest the judgment. Independent of it, I do not perceive I that there is room to doubt the writs of venire for both juries I are parts of the record of conviction. If they be nullities,! it follows that the prisoner has not been charged, or convicted by the finding of the good and lawful men of the vicinage.

The prisoner’s motion is granted, to arrest the judgment, and he is remanded to the jail of Kershaw district, to answer to a new bill of indictment to be preferred against him at the next term.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  