
    George H. Barney vs. The State of Mississippi. Jacob Halfin vs. The Same. Augustus W. Forsyth vs. The Same. William R. Carter vs. The Same. Edward Drayfus vs. The Same. David Jewett vs. The Same.
    The case of McQuillen v. The Slate, 8 S. & M. 587, deciding that the accused has a right to challenge, by plea in abatement, the grand jury by which he is indicted, reviewed and confirmed.
    The interest of an accused person under indictment, so far as the grand jury are concerned, commences at the time of finding the indictment; the grand jury at that time must consist of at least twelve good and lawful men ; and however numerous the grand jury may be, it seems that if there be one of its body within any one of the exceptions in the statute, he vitiates the whole of the jury who participate with him in finding the indictment.
    
      The statutes of this state, among other qualifications of grand jurors, require that they shall be either freeholders or householders; it was held, therefore, to be a good plea in abatement to an indictment found by a grand jury, that one of the grand jurors (naming Mm) was not, at the finding of the indictment, either a freeholder or householder within the county.
    In error from the circuit court of Amite county; Hon. Stan-hope Posey, judge.
    At the March term, 1847, separate indictments were preferred by the grand jury against the following persons, viz.: Geo. H. Barney, Jacob Halfin, Augustus W. Forsyth, Wm. R. Carter, Edmund Drayfus, and David Jewett, for playing for money at the game of cards commonly called “poker.” At the preceding term of the court each of them pleaded, in abatement to the respective indictments found against them, the want of legal qualifications in one of the grand jurors, (Alexander Dixon) by whom the indictments were found.
    The averment in the pleas of all is in these words, to wit: “That one Alexander Dixon was then and there a member of the said grand jury, (by whom the indictment was found,) and that said Alexander Dixon was not then and there, at the finding of the said indictment by the said grand jury, either a freeholder or a householder within the said county of Amite.”
    The grand jury presented the indictment on the third day after their empanelment. The district attorney demurred to the plea. The court below sustained the demurrer. The prisoners then respectively plead not guilty, were tried, found guilty,. sentenced; and each sued out his respective writ of error.
    The cases are now all submitted together.
    
      C. P. Smith and Hurst, for plaintiffs in error.
    1. The exception to these indictments, if valid,.could doubtless have been-made available under a challenge to the panel, or the array of the grand jury; but, as the parties were not in custody, the failure to challenge was not a waiver of the objection. Me Qidllen v. The State, 8 S. & M. 696.
    
      It is admitted that a want of legal qualifications in a grand juror, may be pleaded in abatement. See case above cited, 8 S. & M. 597.
    
      2. The averment of a fact which necessarily implies another fact, is a sufficient averment of the fact implied. The law directs that a foreman of a grand jury shall be appointed by court. If the record shows that A. B. was sworn as foreman, it is equivalent to an express statement that he was appointed; for he could not have been sworn as such, unless he had been appointed. 3 Bac. Abr. 574; 1 Chitt. Cr. S. 334.
    We therefore submit, whether the averment in the plea, that A. Dixon was not then and there, at the finding of the said indictment by the said grand jury, either a freeholder or a householder, is not an averment of the fact that he was not such at the empanelling of the grand jury. In this we may be wrong;' but if so, it is unimportant.
    3. It was evidently not the intention of the legislature to require merely, that the jurors should be drawn from the list furnished by the assessor, (H. & H. 490, sec. 44, 45,) but to secure, for the protection of the citizen, whose rights might be affected, a grand jury composed of members possessing certain qualifications, defined by the law. Such a construction would ' convert the means used for securing á legally constituted grand jury into the end designed.
    The directions for drawing, summoning, and empanelling juries, and the requisites of qualification, say this court, “have been prescribed for wise purposes. They are guards thrown around the liberties of the citizen. They constitute an important part of the right of trial by jury.”
    If it was the object of the legislature to exclude from the exercise of the important functions of a grand juror, all who were neither householders nor freeholders it would certainly appear a matter of very small moment, whether the disqualification existed at the time of empanelling the jury, or a minute after-wards. The injury which the law intended to prevent, the right which it intended to secure, would equally be inflicted or violated, whether the disability existed before or after the jury were empanelled. We confidently believe that the judgment on the demurrer is erroneous, and in the language of this court, (8 S. & M. 597,) we insist, “That a grand jury composed of members who do not possess the requisite qualifications, have no power to find a valid indictment.”
    
      John. D. Freeman, attorney-general, for state.
    This court has always decided, that a plea in abatement to the qualifications of grand jurymen, was a proper plea, that the same was not waived by a failure to challenge the grand jury at the time the same was empanelled. The other point is submitted without comment.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an indictment under the act of February 9, 1839, entitled “An act farther to discourage and suppress gaming. Hutch, c. 951, art. 11.

To this indictment preferred by the grand jury of Amite county, the accused pleaded in abatement, “ That one Alexander Dixon was then and there a member of the said grand jury, and that said Alexander Dixon was not then and there at the finding of said indictment by the said grand jury, either a freeholder or a householder within the said county of Amite,” &c. To this plea the district attorney filed a demurrer, and assigned for cause, that the plea did not allege that the said juror, Alexander Dixon, was at the time of empanelling the said grand jury, neither a householder nor a freeholder; and that the accused, by not challenging the said juror, Alexander Dixon, at the time of the empanelling of said grand jury, waived all right to question after that time the qualifications of said juror. This demurrer was sustained in the circuit court, and upon judgment of respondeat ouster, the accused pleaded not guilty, and upon a trial, conviction and sentence ensued.

In the case of Dowling v. The State, 5 S. & M. 664, we stated, that it had been held in Massachusetts, “ that objections to the personal qualifications of grand jurors, or to the legality of the returns cannot affect any indictments found by them, after they have been received and filed by the court; but that such objections, if any exist, must be made before the indictments are found, and may be received from any person who is under a presentment for any crime whatsoever; or from any person present, who may make the suggestion as amicus curice.” The reason of such rule in that state is, that the formality of the English forms and practice of stating in the caption of every indictment, that it was found by twelve good and lawful men is not there preserved, but the language is simply, “ The jurors for the commonwealth, upon their oath, present,” &c., and hence, if any irregularity should happen, it might be made a subject of inquiry upon a suggestion to the court, for in that state the grand jury is constituted under its superintendence, and must be understood to have the legal number of qualified men. The rule in Massachusetts was not, however, adopted by us in the case of Dowling v. The State, nor can it be under our forms and practice, which follow, in this particular, the English modes. On the contrary, in McQuillen v. The State, 8 S. & M. 587, where the question was directly made, we decided, that an accused has the right to challenge, by plea in abatement, the competency of the grand jury by whom he is indicted. This privilege arises not alone from the legal principles, that indictments not found by twelve good and lawful men at the least, are void and erroneous at common law, and, therefore, some mode must be left open for ascertaining the fact, but is well sustained as a method of insuring to accused persons a fair and impartial trial. Such persons are not present when the grand jurors are empanelled, perhaps have not been made subjects of complaint or even suspicion. It certainly would not he right to estop a party from pleading a matter, to which he could not otherwise except.

The interest of an accused person under indictment, with the grand jury commences at the time of the finding of the indictment. This is the point of time when, as to him, the legal number of qualified men must exist upon the grand inquest. Indictments, not found by at least twelve good and lawful men, are void at common law. Cro. Eliz. 654; 2 Burr. 1088; 2 Hawk. P. C. 307. It is said, by Hawkins, P. C. B. 2, ch. 25, sec. 28, that if any one of the grand jury, who find an indictment, be within any one of the exceptions in the statute, he vitiates- the whole, though ever so many unexceptionable persons joined with him in finding it. Chitty in his Cr. Law, vol. 1, p. 307, lays down the same doctrine, if it be discovered after the finding. The statutes of this state requires, among other qualifications of jurors, that they should be either freeholders or householders. H. & H. 490, sec. 44. Hence, we think the demurrer of the district attorney in this case should not have been sustained.

The judgment must be reversed, and the demurrer directed to be overrulod in this court, and we remand the case for farther proceedings.  