
    George Duke v. The State of Ohio.
    The vital provision of section 75 of the code of criminal procedure is that “ Before any witness shall be examined by the grand jury, an oath or affirmation shall be administered to him by the clerk.” If this provision be observed, an indictment found upon the testimony of the witness will not be held to have been illegally found, because the court has not certified that such oath or affirmation had been administered by the clerk, or because such certificate, if made, has not been delivered to the witness, and by him presented to the foreman of the grand jury, when he is admitted for examination.
    Application for a writ of error to the court of common pleas of Clark county.
    At the October term, 1870, of the court of common pleas of Clark county, Duke was indicted for unlawfully selling intoxicating liquors. He pleaded in abatement to the indictment, that it was found alone upon the testimony of witnesses who were not sworn and sent before the grand jury according to law, in this, that the witnesses who went before the grand jury were there examined without having received and delivered to the foreman a certificate of the court showing that an oath or affirmation had been administered to the witnesses by the clerk of the court; and that no such certificate was ever made by the court showing that the clerk had administered to the witnesses an oath or affirmation as required by law.
    The State demurred to this plea, and the demurrer was sustained, and Duke was required to further plead, and pleaded not guilty, and upon trial to a jury was found guilty, and was sentenced to pay a fine of fifty dollars and be imprisoned in the jail twenty days, and pay the costs of prosecution.
    Notice having been given that Duke intended to apply for :a writ of error, the execution of the sentence was suspended till the next term upon recognizance.
    The present application is for such writ.
    
      John H. Littler and Keifer & Oglevie for the applicant:
    The law requires several tilings to concur before a witness can legally go before a grand jury and be by it examined: 1st. He must be sworn or affirmed by the clerk. 2d. The cowrt must certify such oath or affirmation. 3d. The certificate of the court 'must be delivered to the witness. 4th. The witness must present such certificate to the foreman of the grand jury. Criminal code, sec. 15.
    'The last three of these requisites were omitted in this case. They are as important to qualify a witness for examination by a grand jury, as the requirement that he shall be sworn.
    All these requisites being prescribed by law, none of them can be dispensed with.
    The purpose of the law was to have the affirmative action of the ooiwt upon the propriety of sending witnesses before the grand jury, and to furnish to the jury the evidence of the order of the court in the premises, as well as the evidence of the oath or affirmation taken by them.
    If this had not been the intention of the general assembly, it would have left the certificate to be made by the clerk, as was the law prior to the adoption of the criminal code.
    The courts should hesitate long before declaring a law to be only directory which is intended to throw a guard around the purity of the grand jury.
    The accused is entitled to have the law strictly enforced.
    In support of the claim that the provisions of section 75 of the criminal code are not directory, as to anything required to be done by the court, the following authorities are cited: Spice v. Steinruck, 4 Ohio St. 219; Hubble v. Rennick, 1 Ohio St. 175; 1 Burr, 447; Bloom v. Richards, 2 Ohio St. 402-3; Tracy v. Card, 2 Ohio St. 431, 441; Trustees of Parris Township v. Cherry, 8 Ohio St. 564, 567; 1 Bishop’s Orim. Law, secs. 115, 133; The People v. Howell, 4 Johns. 296 ; United States v. Wigglesworth, 2 Story, 369.
    In support of the plea in abatement the following authorities are cited: 1 Wharton’s Crim. Law, secs. 480, 489, 493; The State v. Love, 4 Humph. 255; United States v. Coolidge, 2 Gallison, 366; Rex v. B. and T. Canal Company (7 Barn. & Cres. 514); 14 Eng. Com. Law, 232; 2 Hawkins’ Pleas of the Crown, p. 299, secs. 26, 27; Jones v. The State, 4 Blackford, 73; Herndon v. The State, 5 Blackford, 75; Barger v. The State, 6 Blackford, 188; Freeman v. The State, 6 Blackford, 248; The People v. Hurlburt, 4 Denio, 133, 136; Doyle v. The State, 17 Ohio, 222; 1 Chit. Crim. Law, 318; Jillard v. Com., 2 Casey, 169.
    
      F. B. Pond, attorney-general, for the State.
    
      Thomas J. Pri/ngle, prosecuting attorney, also for the State:
    It does not appear from the plea that the witnesses were not sworn by the clerk of the court, nor that a certificate of the fact, signed by the clerk, was not presented to the foreman of the grand jury by the witnesses before they were examined.
    It was not necessary to the validity of the indictment, that the court, -¿.<3., the judge, should sign the certificate. It was sufficient that the indictment was found upon the testimony of witnesses sworn by the proper officer of the court, and sent before the grand jury.
   By the Court:

This application must be overruled. We are of opinion that the demurrer to the plea was properly sustained. It does not appear from the plea that an oath or affirmation was not administered to each of the witnesses by the clerk before they were examined by the grand jury. If they were so sworn or affirmed the vital provision of section 16 of the code of criminal procedure was observed. While all the provisions of this section should be followed in practice, because prescribed, yet we are not prepared to say that where the witness has been sworn or affirmed by the clerk before he goes before the grand jury for examination, the indictment found upon his testimony is not lawfully found because the court has not certified that such oath or affirmation had been administered by the clerk, or because such certificate, if made, has not been delivered to the witness and by him presented to the foreman of the grand jury, when he is admitted for examination.

Writ refused.  