
    State vs. Parrish.
    Grand juries have the power to have witneSes brought before them by subpoena, and require them to disclose all gamináa^fliin meir knowledge, which may have taken place in the county within six njonthsf And upon such information demand an indictment in due form, and return it to court without a re*examination of the witness.
    This is authorized by the act of 1824, ch. 5.
    An indictment was returnc^by tfe grand jury against Parrish, for gaming, at November term^of the circuit court, held for Montgomery county, in-1846.
    To this indictment Parrish pl&aderj. as follows. — “This day, in proper person, came C. E. Parrish^and defends the force, &c., and. for plea saith, “that th@v^upposed indictment upon which he is arraigned, and of which he staves oyer, and which is read to him, was not found upon the evidence of a witness duly sworn in open court to tesíífy before the grand jury upon said supposed indictment, and this b^ is ready to verify, and prays judgment, that the supposed indictment be quashed. Kimble and Foster, attornies.’'
    This plea was sworn to by defendMiCllld^signed by him. The state took issue on this plea, and a jury was empan-nelled under the direction of judge Martin, to try the truth of said plea. ^
    The state introduced C. Bailey, the clerk, 4vho stated, that he was the clerk, and swore Johnson and others, that the evidence they should give of and concernmg.gkmnig, should be the .truth, the whole truth, and nothing but the^ruth; that this was at the November term of the court at v|lnch this indictment was found; that at the time he swore-them, the indictment in this case was not before the jury; that he, had notijat that time seen it; that he had not sworn them, or either oMhem, upon the indictmént, or for the gaming in the indictmentánentioned; that he did not swear them,-to give evidence^before;the grand jury of gaming at any particular time or place. He stated that he had been under the impression that a sutocena for said witnesses had been issued, but that he had made search among the papers and couldinot find any, and did not recollect that he had issued any.
    The state then introduced Johnson, who stated that he was summoned to give evidence before the grand jury at the November term, 1846, and did give evidence concerning gaming by the defendant; that he was sworn to give evidence generally concerning gaming; that at the time he was sworn he did not see any indictment, nor did he see any indictment before the grand jury at the time he was examined; that he did not give evidence of gaming at any particular time or place; that he and other witnesses sworn, as he had been, made out a list of the persons that had played at nine pins and handed it to the grand jury.
    The attorney general admitted that the bill of indictment was not before the grand jury at the time the above named witnesses were before that body, but that it was sent after-wards. ' '
    This was all the evidence, and the presiding judge, Martin, charged the jury,^that a call for a witness by the grand jury to come before them, to testify concerning gaming, must be made by the grand jury as a body, and that neither the attorney general nor'the foreman of the grand jury had a right to demand the subpoena; that a subpoena was absolutely necessary, but that if the- grand jury, in a proper manner, called for witness, and he voluntarily made his appearance before them and testified,' firs evidence should be regarded as though he had testified under a subpoena; that fit was not necessary to have any indictment or presentment before the grand jury at the time-the witness was examined, but that the grand jpry might afterwards call upon the attorney general for such bill, and find il on the testimony already heard without re-examining the witness; that a witness when before the grand jury could not be compelled to answer interrogatories concerning gaming, unless time and place were specified; that if he thought proper to be examined and give general evidence, not restricted to time or place, such evidence would be sufficient to ground an indictment upon.
    The court further charged the jury, that it was necessary it should appear that a witness was sworn, but that it was not necessary that such swearing should be evidenced by the record, or by any memorandum” thereof made by the clerk on the back of the indictment, but would be sufficient if shown by parol proof.
    The jury found the defendant guilty. A motion was made for a new trial. This was overruled, and judgment having been rendered, fining the defendant five dollars, he appealed therefrom.
    
      E. H. Foster, jr., for plaintiff in error.
    ' It is indispensible to the safety of the citizen, that an indictment should be found on the oath of a witness, and that a presentment should be made by a sworn jury. 4 Humph. 12; 1 Humph. 59. The fact that the legislature have declared the statutes against gaming shall be construed remedially, cannot, upon any principle of right reasoning, dispense with the swearing the witnesses to give evidence upon the indictment. See Martin & Yerg/133. If witness be not sworn in open court it is error. Gilman vs. State, 1 Humph. 59. The powers given by the act of 1824 are not intended to go so far as to authorize the attorney general to prefer indictments upon evidence the grand jury may have previously picked up. The witnesses in this case were sworn generally, without specification as to time or place, and without any reference to any indictment before them, as none was in existence at the time. There was no re-examination of the witnesses. He merely, before the drawing the indictment, furnished the grand jury with a list of persons who had been engaged in playing at nine pins. He argued, therefore, that there was no evidence before the grand jury upon which this indictment could have been found.
    
      Attorney general, for the state.
   Turley J.

delivered the opinion of the court.

The defendant was indicted in the circuit court of Montgomery county, for the offence of gaming. To the bill of indictment, he pleaded in abatement, that the bill was not found on the evidence of a witness duly sworn to testify before the grand jury, upon the indictment. On this plea there was issue, which was found against the defendant, and there was judgment accordingly; and the defendant appealed to this court.

It appeared, that the witnesses were sworn in open court,. by the clerk, and sent to the grand jury, before whom they were examined relative to the offence of gaming in the county ; and gave evidence against the defendant, together with many others, upon which this bill of indictment was prepared by the attorney general, and found by the grand jury.

It does not appear, that any subpoena had been issued for the witnesses.

We think this proof warranted Jhe verdict upon the plea. By the act of 1824, ch. 5, sec. 2, an inquisitorial power is given to "grand juries in cases of gaming; and they are authorized and empowered, and it is made their duty, where they have a well grounded belief that such offence has been committed, to apply for' subpoenas for witnesses, whom they may believe to have any knowledge of such offence, and such witnesses are required, when they appear before the grand jury, to give-evidence of any such offence or offences, as may be known to them.

Now, this proceeding is of necessity before an indictment is preferred, and is resorted to for the purpose of obtaining information upon which it may be preferred. Then it can be no objection to the indictment, that the witnesses were examined before it was prepared.

It is true, that witnesses are not bound to attend before grand juries, for the purpose of giving evidence, without subpoena, but, if they do, the defendant cannot object thereto, because the testimony, when given under oath, is legal without as well as with a subpoena.

We, therefore, think, there is no error in the judgment, and affirm it.  