
    The State vs. Baker.
    A presentment was made by'twelve jurymen under oath and by one acting' with them not under oath*. Held, that the presentment was void, for it may have been founded on the information of him who was unsworn; sccus, with regard to an indictment, for it is founded upon proof.
    
      Raines, for the plaintiff in error.
    
      Attorney General, for the State.
   Tueuey, J.

delivered the opinion of the court.

This is a presentment against defendant for gaming, to which he pleads in abatement, that one of the grand jurors who acted upon the presentment was not duly elected, empanneled, sworn and charged as a grand juror. To this plea the Attorney General replies, that there were twelve other jurors, who were duly elected, empanneled, sworn and charged to enquire of of-fences, and that they were good and lawful men of the county and made the presentment. To this replication, there is a demurrer, andjoinder, which demurrer was overruled by the court below and judgment rendered against the defendant, who prosecutes .his writ of error to this court. We' hold that twelve good and lawful men constitute a legal grand inquest, and that indictments found by them are good, though there be a thirteenth man acting with them, who is not of record a member of the body; but that it is not so with presentments; and this because bills of indictment are founded upon proof, presentments upon information of some one of the grand jury. Twelve men may legally find a true bill upon proof, but in the case of presentments, if there be one of the jury not legally a member of the body, the presentment is void, because it may have been found upon his information, which would not be under oath.

Judgment reversed.  