
    Simeon Box v. The State of Mississippi.
    1. Criminax, law: grand jury: how selected, under acts op 1854 and 1856. —The maimer of selecting the grand jury from those summoned to attend as grand jurors, under the provisions of the local Act of 1854, made general in 1856, is left to the sound discretion of the court; and hence, it will not be improper for the court to cause them to be sworn and impanelled in the order in which their names are returned by the sheriff, until a sufficient number be sworn to constitute a legal grand jury.
    2. Same: number composing grand jury. — The number of the grand jury im-panelled under the Acts of 1854 and 1856, must not be less than thirteen, nor more than eighteen. See Miller v. The State, 33 Miss. R. 356.
    IN error from the Circuit Court of Clarice county. Hon. William M. Hancock, judge.
    
      John D. Freeman, for the plaintiff in error.
    
      
      T. tT. Wharton, attorney-general, for tbe State.
   HaNDY, J.,

delivered tbe opinion of the court.

Tbe plaintiff in error- was indicted for gaming, contrary to the statute, and be pleaded in abatement that the grand jurors by whom tbe indictment was found were not drawn by lot from tbe whole number of persons summoned by tbe sheriff, and in attendance as grand jurors, for the term at which the indictment was found. To this, a demurrer was filed and sustained, and judgment was thereupon rendered against the plaintiff in error.

The question thus presented is, whether, under th'e Act of 1854, prescribing the mode of summoning grand jurors, which was made general by the Act of 1856, chap. 3, it is necessary to the legal constitution of a grand jury, that the names be drawn by lot from the persons summoned and returned by the sheriff as grand jurors. "VVe can perceive nothing in the statutes referred to, requiring such a course.

It is manifest that the old mode of drawing jurors by lot is abrogated, and a new mode of summoning and impanelling them established by the statute. We have held at this term, that as to the number of persons to compose the grand jury, the statute must be construed with reference to previous acts upon the subject, not repealed either positively or by implication : and consequently that although twenty persons were required to be summoned to attend as grand jurors, yet it was not intended to make any change in the law as to the number necessary to compose a legal grand jury. Miller v. The State, 33 Miss. R. 356.

But the manner of selecting the persons to compose the jury is not prescribed in the statute, and the old mode is abolished. What course, then, is to be pursued in the proceeding ? It appears to be a matter left to the sound discretion of the court, and no good reason can be perceived why the court should not cause the jurors to be sworn and impanelled in the order in which their names are returned by the sheriff, until a sufficient number be sworn to constitute a legal jury.

The second plea sets, up the additional ground of defence, that the grand jurors were not drawn “not less than thirteen, nor more than eighteen, as required by law.” And this plea was also demurred to, and held insufficient.

This comes within the decision in Miller v. The State, as the plea alleges in substance that the grand jury were not composed of the number of individuals required by law.

Upon this ground, the judgment must be reversed, the demurrer sustained, and the indictment quashed.  