
    *Samuel Huling v. The State of Ohio.
    1. It is a good plea in abatement in a criminal case, that one or more of the grand jurors who found the indictment had not the legal qualifications of grand jurors.
    2. But mere irregularities in selecting and drawing grand jurors, which do not relate to or affect their personal qualifications as such, must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement.
    3. Where an indictment alleges property in a person, the allegation is sufficiently proved, by showing that the person named had the rightful custody and control of the property.
    Error to the common pleas of Brown county.
    The plaintiff in error was indicted on the 15th of March, 1867, for the murder of Adam Rose. The indictment contained two counts, both for murder in the first degree, under the first section of the crimes act. The first count charged the act to have been committed “purposely, and of deliberate and of premeditated malice ; ” and the second charged it to have been committed “ purposely, and in the perpetration of a burglary; ” which burglary is .also set out and charged in the indictment, which states the breaking and entering to have been into the office of one William Norris, to steal his property.
    To this indictment the prisoner put in three special pleas, setting up certain alleged irregularities in selecting and drawing the grand jurors by whom it was found.
    The first plea alleged, that the venire issued for the grand jury contained names which were not returned by the township trustees in 1866.
    
      The second plea alleged, that one hundred and eight jurors were apportioned to the townships to he selected and sent up in 1866, whereas the number should have been only sixty-eight, there being forty names still undrawn in the box; and that such townships as selected and sent up names of jurors in 1866, sent up their full quota ■of the one hundred and eight.
    The third plea alleged, that some of the townships in 1866 neglected to send up any jurors.
    Separate demurrers to these pleas were sustained by the court; *and thereupon the prisoner pleaded not guilty, and was •tried to a jury.
    By their verdict the jury found the prisoner “ guilty of murder in the first degree, in manner and form as charged in said indiet•ment.”
    A motion in arrest of judgment, and also a motion for a new •trial, were made on behalf of the prisoner and overruled by the court; and thereupon he was sentenced to be hanged.
    The record contains a bill of exceptions, which sets forth all the evidence, together with the charge of the court, and shows that the motion for a new trial was predicated upon the ground, among others, that the verdict was contrary to the law and evidence.
    The case made by the evidence is this: On the night of 30th November, 1866, the prisoner, with three others, burglariously broke and entered the office of the county treasurer of Brown county, being a room in the court house, with a room opening, into the court-house hall. William Norris was the county treasurer at the time. The entry was made about 12 o’clock. The burglars soon after entering blew open the safe with gunpowder, and the noise of the explosion awakened and alarmed some of those who resided near by. The deceased and another approached the door of the hall, when some one of the four burglars opened the hall door from within, and with the remark, “You are dead men,” fired a pistol-shot, which hit deceased, and caused his death. After an interval of about a minute, a second shot was fired from the same door, but it did not take effect upon any person. At the time of firing the shots all four of the burglars were in the hall, or in the hall and the office: and immediately after, they all escaped from the hall and fled. There was no evidence to show which of the four fired either of the shots; nor was there any evidence tending to show that either of them opposed or protested against the shooting.
    
      After the evidence was closed, the court charged the jury, among other things, as follows:
    “ If you shall find the defendant guilty of burglary, you will then pass to consider whether the defendant is guilty of murder in the first degree, or manslaughter under the second *count. . .
    You will look upon this case as if the indictment had been found against Samuel Huling alone.
    “The other (three) persons jointly indicted'are not now on trial. , . . If you shall find from the evidence that there was but one-person engaged in the unlawful shooting, you must be satisfied beyond a reasonable doubt that that person was Samuel Huling, and: of his individual guilt. But if you shall find from the evidence, beyond a reasonable doubt, that Adam Rose was purposely killed, and that the killing was the joint act of defendant and another-person or persons, and killed in the perpetration of a burglary committed in pursuance of a common.design, then it will be a matter of indifference what one of the conspirators fired the pistol-shot. The shooting of one will be the act of all. And so it is if each has his particluar part to do, the whole contributing to one-result, In considering this second count, .you will not be required to consider the question of deliberation or premeditation; for if defendant purposely killed Adam Rose while the defendant was in. the perpetration of a burglary, either by himself or as the result of a conspiracy and common design among the defendants, or any two of them of whom he was one, the unlawful act of burglary takes the place of malice, deliberation, and premeditation, and they need not be proven, as the law presumes their existence.”
    The counsel for the prisoner then asked the court to charge the-jury: “That if the jury shall be satisfied that there was no conspiracy between the defendant Huling and all or either of the-other three, to kill and murder, then the defendant Huling can not be convicted, unless they find from the testimony that he actually did the shooting, or assented to it.” Which charge the court accordingly gave.
    The court also charged the jury that proof that the safe which was so blown open, and the money it contained, belonged to the county, but were in the custody of the treasurer, was sufficient to sustain the allegation of the indictment, that they were the property of the treasurer.
    The errors assigned, and which are now insisted upon, are:
    
      1. That the court erred in sustaining the demurrer to the special pleas.
    *2. That the charge to the jury was erroneous.
    3. That the court overruled the motion for a new trial.
    4. That neither the indictment, nor any copy thereof, was before the court or jury at the time of the trial.
    
      Marshall & Loudon, for plaintiff in error:
    1. The court erred in sustainining the demurrer to the special pleas setting up the defective and improper apportionment, selection, return, and drawing of the persons for whom the venire for the grand jury was issued. United States Const. Amendments, art. 5; Doyle v. The State, 17 Ohio, 225; S. & C., chap. 62, 751, 752, secs. 1, 4, 7; McQuillen v. The State, 8 Smed. & Marsh. 587; Rawles v. The State, Ib. 599; Barger et al. v. The State, 6 Blackf. 188; The State v. Henderson, 5 Blackf. 75; The State v. Conner et al., 5 Blackf. 325; Vattier v. The State, 4 Blackf. 73; Portis v. The State, 23 Miss. 578; Leathers v. The State, 26 Miss. 73; The State v. Williams, 1 Rich. 188; The State v. Williams, 5 Porter, 130; The State v. Greenwood, Ib. 474; The State v. Seaborn, 4 Devereux, 305; 6 Blackf. 248; United States v. Cropper, 1 Morris, 190; Hales P. C. 155; 1 Arch. Cr. Law, 359, 534, 535; 3 Blackf. 325.
    2. The court erred in instructing the jury that proof of property in the public would sustain an indictment charging the property to be that of an individual. The proof showed that it was not the office of Norris, but the office of the treasurer of the county, and not a dollar of Norris’ property was in the office at the time of the alleged burglary.
    3. At the trial neither the original indictment nor a copy was before the jury. How could they pass upon the question of life and death in the absence of the indictment? It was not the business of the accused to have it before the 'jury.
    
      White & Waters, also for plaintiff in error:
    1. The verdict is contrary to the evidence and the charge of the court. Therefore the verdict should have been set aside and a new trial granted. There was no proof as to who perpetrated the act of killing. Nor does the evidence show a conspiracy between the plaintiff in error and others to perpetrate *the act of killing. Eouts v. The State, 8 Ohio St. 109-111.
    
      2. The evidence shows that the burglary charged was completed before the alleged killing took place. -Therefore the plaintiff in ■error could not have been properly convicted under the second count; and to convict him under the first count, it was necessary for the evidence to show (1) that he actually perpetrated the killing, or (2) that the parties combined not only to commit the crime of burglary, but also that of murder.
    In support of these propositions we refer to 1 Russell on Cr., margin, 455, 456; 2 Ib. 570; Robbins v. The State, 8 Ohio St. 178, 179; Fouts v. The State, 7 Ohio St. 471; Clauson v. The State, 14 Ohio St. 234; Patton v. The State, 6 Ohio St. 467.
    
      W. H. West, attorney-general, for the state,
    in argument, cited S. & C. 759, sec. 30; 9 Mass. 107; Am. Cr. Law, sec. 472.
   Welch, J.

We think the court below did not err in sustaining the demurrers to the special pleas. Those pleas set up mere irregularities in the manner of selecting and drawing the grand jurors, and do not allege any want of competency in the jurors themselves. Whether the latter kind of objection can be taken by plea to the indictment, is a question upon which there has been much difference of opinion and contrariety of decision. Since the decision of the case of Doyle v. The State, 17 Ohio, 222, it has been settled law in Ohio that such a plea is good in all cases where the objection is to the qualification or competency of the individual jurors. This is as far as we have gone. We have never held, and such is not the practice so far as we know, that mere objections to the manner of selecting and constituting the jury can be taken by plea in abatement. On the contrary, the practice is to require the objection to be taken by challenge for cause, either to the panel or to individual jurors. In England, as well as in the United States, the decided weight of authority is in favor of that practice. In some of the states, as Massachusetts and New York, challenge seems to be the only form of making the objection, even where it goes to *the personal disqualification of the jurors. The better opinion, however, seems to be, and the current of authority is to that effect, that irregularities in selecting and empaneling grand jurors, which do not go to their incompetency, can only be objected to by way of challenge, but that their individual incompetency may be pleaded in abatement to the indictment. And this distinction is founded in reason. It is important to the defendant that he should not be subjected to a trial except upon an indictment found by a jury composed of good and lawful men; but, provided, they are such good and lawful men, it is matter of no interest to-him in what manner they are selected and drawn. The manner-of selecting and drawing jurors concerns the public rather than the-parties in a cause, provided only that irregularities therein do not result in placing in the box jurors who are disqualified. It seems to us, therefore, that the provisions of law for the selection, cjistribution, and drawing of jurors, should be regarded as directory, rather than as mandatory and indispensable. They were intended for public convenience, and to equalize the burden of jury-service, as well as to insure the selection of competent jurors; and'it is only when an irregularity has occurred by which they have failed to accomplish the latter object, that the defendant will be allowed to make the objection by plea. In cases of mere irregularity, he must make it by challenge.

These special' pleas, therefore, show no sufficient ground for abating or quashing the indictment. Wether they set forth a good-cause of challenge to the jury, need not now be decided. Taken together, the three pleas merely show that the trustees were notified to select one hundred and eight jurors, when the number should; have been only sixty-eight, but that a less number than one hundred and eight, perhaps the proper number, sixty-eight, were in-fact sent up, some townships sending more than their pro rata part-of sixty-eight, and others sending loss, or sending none. But there is no averment that there was more than one hundred and eight in-the box, or that they were not all good and lawful persons. These facts constitute no ground for quashing *the indictment. Much less do the facts set forth in either of the pleas alone constitute such ground.

Did the court err in its charge to the jury?

It is said, in the first place, that it erred in charging the jury that proof of the treasurer’s custody and control of the county property, would sustain an allegation in the indictment laying the property in the treasurer. There was clearly no error in this part of the charge. No rule of law is better settled, than that proof of the rightful possession and control of the property is sufficient in such cases.

It is contended, in the second place, that the court erred in charging the jury that if either of the burglars, while all were engaged in committing the burglary, purposely killed the deceased, all would be guilty of purposely killing him. That such is not' the law of the case, seems to be the main point made in argument for the plaintiff in error. But we do not understand that the court in fact charged the jury as assumed. The court did not charge the jury that, under the state of facts supposed, the killing by one would be a killing by all; much less, that the purposely killing by one would be a purposely killing by all. In the proposition charged at the request of prisoner’s counsel, the court utterly exclude any such idea. That proposition was, that the prisoner can not be convicted unless he actually did the shooting, or actually conspired with the others to commit the murder. If there is any uncertainty or ambiguity in the former part of the charge, it is certainly all removed by this proposition. The court left it as a question of fact to the jury, to say whether the prisoner actually participated in the homicide, either by doing the act himself, or by assenting to its being done by another. How far, and under what circumstances, a homicide by one of several joint burglars implicates the others ; whether, as matter of law, his ad is their act, and his purpose their purpose, so as to render all guilty of the homicide, and all guilty in the same degree; or whether, on the other hand, the court erred in favor of the prisoner, in making the guilt of the accomplices to depend upon their actual assent or dissent to the murder itself, are questions which do not arise in the present case, and which we therefore leave undecided.

*But it is argued that the same questions arise on the overruling of the motion for a new trial. We think not. The evidence not only shows a common purpose to commit the burglary, and a common participation in it, but also strongly tends to show, and we think the jury were warranted in finding, that there was a ■common purpose to commit the murder. The four burglars were all present, most probably at' the very door whence the shots were fired; and they remained there till the work was done, and then .all fled together. Their silence gave consent. The act was done for their common protection, and they all took advantage of it to make good their escape. The words “you are dead men,” must have been heard by all. Tet there was no protest against shooting, no offer to surrender, and no disavowal of the act. We think the jury were fully warranted in finding, as, under the charge of the court, they must be presumed to have found that there was in fact a common purpose to commit the murder, as well as a common purpose to commit the burglary; and that their verdict was not contrary to the law or the evidence. The court did not, therefore, err in overruling the motion for a new trial.

It is also assigned for error, that neither the indictment, nor any copy of it, was before the court or jury during the trial. We have •examined the record in vain, to find any statement of such fact. It is alleged in the motion in arrest of judgment, that such was the fact, but there is no proof of it, nor is there any statement of the fact in the bill of exceptions; and the motion itself does not show that any objection was made, or any exception taken, to proceeding without the presence of the indictment. Under such circumstances, of course we can not consider the question made by counsel.

Upon the whole, we see no error in the proceedings and judgment below, and the same must be affirmed.

Judgment affirmed.

Day, C. J., and White, Brinkerhofe, and Scott, JX, concurred.  