
    Gilman vs. The State.
    It ¡3 not necessary that it should appear of record that tho witness, upon whose evidence an indictment for gaming has been found, was sworn in open1 court and sent to the grand jury to give evidence in that case.
    If the witness bo not sworn in open court in fact it is error, but the defendant must plead the matter in abatement.
    
      Note. — State vs. Tolls, 5 Yerg. 364: Jetton vs. State, Meigs, 192: State vs. Fdloios, 2 Hay. 34: State vs. Cam, 1 Hawk. 352: Rex vs. Dickerson, Russ. and Ry. C. C. 401: 2 Gallison, 364: 1 Chitty C. L. 320. Repórter,
    T. W. Gilman was convicted of common gaming within the corporate limits of the city of Nashville, in the mayor’s court, and sentenced to pay afíne of ten dollars and the costs of prosecution. He moved the court to arrest the judgment. The motion was overruled, judgment rendered, and the defendant appealed in error to this court.
    
      E. H. Ewing, for plaintiff in error.
    
      Attorney General, for the State.
   Green, J.

delivered the opinion of the court.

The only question in this case is, whether, if it does not appear of record that a witness on whose evidence an indictment has been found was sworn in open court and sent to the grand jury to give evidence in that case, it will be error. We think itj will not. In practice such an entry is never made on the minutes of the court. The clerk usually endorses on the indictment the names of the witnesses, and that they were sworn. This is done that the grand jury may have evidence that the persons who appear before them to testify have been sworn; and it is highly proper. But if the witnesses have been in fact sworn, their evidence will authorize the finding an indictment whether the fact that they were sworn be endorsed upon thq indictment or not, True, if the witnesses be not sworn in open court, it is error; but the defendant must plead this matter in abatement.

Judgment affirmed.  