
    THE STATE v. CLINT YOUNG.
    Nashville,
    January Term, 1876.
    CRIMINAL LAW. Presentment by twelve competent jurors, good.
    A presentment for an offense which may be presented under the inquisitorial powers of a grand jury, if found by twelve jurors free from exception, is g-ood. As where a presentment is signed by the thirteen grand jurors, one of whom is related to the accused within the sixth degree, a plea in abatement for this cause must, in addition, allege that the presentment was found on the information of one of the competent grand jurors, otherwise a demurrer to the plea in abatement will be sustained. [Presentment purporting to be made upon the g-rand jury’s own knowledge, where, in fact, it is made upon the testimony of witnesses, may be abated. Car. Lawsuit, ^sec. 826, subsec. 3; State v. Love, 4 Hum., 255; DeSliazo v.'State, 4 Hum., 275; State v. Smith, Meigs, 99; State v. Lee, 3 Pickle, 114. But the source of information of the grand juror upon whose knowledge the presentment is made cannot be impeached or inquired into. State v. McManus, 4 Hum., 258.]
    Cited and construed: Code (T. & S.), sec. 5087a; Shannon’s Code, sec. 7046(18).
    Statement of the case.
    Defendant was presented at the July term, 1874, of the circuit court of DeNalb county, for open and notorious lewdness with one Nancy Moore.
    At the July term, 1876, of said court, defendant Young pleaded in abatement to the presentment 'alleging that it was not found and presented by a legal grand jury, James Terrel having acted on and signed the same, and he being incompetent on account of relationship to defendant within the sixth degree. The record shows that thirteen grand jurors signed the presentment.
    To this plea the attorney-general for the state filed his demurrer, alleging that it was not sufficient, because it failed to aver that the presentment was found on the information of one of the grand jurors, claiming that as twelve lawful grand jurors acted on the same it is good, unless found on information of one of said grand jurors.
    The circuit court overruled the demurrer and quashed the presentment. Attorney-General Morgan, for the state, appealed in error to the supreme court.
   Sneed, J.,

delivered the opinion of the court.

The demurrer to the plea in abatement ought to have been sustained. The plea does not aver that the presentment was found on the information of one of the jurors. The offense is one which may be presented under the inquisitorial powers of the grand jury, Code 5087a [Shannon’s Code, sec. 7046, sub-section 18], and the presentment may have been found on the testimony of a witness sent before the grand jury. There being twelve jurors free from exception, we must hold the presentment good. Reverse the judgment and remand the cause for further proceedings in the court below.  