
    John P. McQuillen vs. The State of Mississippi.
    It is the duty of the circuit judge to charge the grand jury, when impanelled, in regard to the' nature of the duty they are required to perform, and the motives which should govern them in the discharge of that duty, but..the charge so given is not to be placed on the record, nor is it necessary that the record should show that it was given, as the matter charged does not constitute a ground of error ; where, therefore, it is not made apparent by a bill of exceptions that such charge was not given, this court will presume that the circuit judge performed his duty, and gave the charge as required by law.
    A plea by an attorney of a party indicted for an assault committed with intent to rob, is a nullity; the defendant must plead in person.
    It is incompetent for the clerk of a circuit court at a subsequent term to make any entry of what had transpired at the preceding term ; where, therefore, the clerk stated in the record, in a criminal case, that “ the said defendant having been arraigned at the last term of this court, pleaded not guilty, and put himself upon the country,” and there was in fact no arraignment mentioned in the record of the proceedings of the previous term ; it was held, that it did not legally appear that the accused ever was arraigned, which was error.
    In a criminal case where a juror is elected, he must remain under the care of the court, or an officer, before, as well as after he is sworn. And it is error to permit jurors who have been elected and not sworn, or the jury after they have been sworn, to disperse without the consent of the prisoner.
    A grand jury composed of members who do not possess the requisite qualifications, or who have not been drawn, summoned and impanelled in accordance with the law, have no power to find a valid indictment; a prisoner, therefore, has the right to question by a plea in abatement, the competency of the grand jury by whom he was indicted ; he cannot be called to answer a charge against him, unless it has been preferred according to the forms of law.
    Pleas in abatement in criminal as well as in civil cases, must be pleaded at the proper time; by denying the charge, the accused waives matter in abatement.
    
      ERROR from the circuit court of Washington county; Hon. George Coalter, judge.
    The record in this case discloses the following facts, to wit: That on the 13th day of September, 1845, the clerk of the circuit court, and the sheriff of Washington county, drew from the box containing the names of persons liable to serve on juries, in that county, the names of thirty-six persons, to attend and serve as jurors at the October term, 1845, of the circuit court of Washington county; that a writ of venire facias was issued, commanding the sheriff to summon the persons whose names were so drawn; and the same was returned executed. That at the October term, the sheriff and clerk drew from the list of the names of the persons, so summoned, who were present at court, a sufficient number to serve as grand jurors, to wit: Aaron Wickliffe and thirteen others. “And the court having appointed Aaron Wickliffe, foreman, the whole number were sworn and impanelled according to law, and proceeded to the discharge of their duties.” The next entry in the record was made at the October term, 1845, on the, 2d day of the term, and is in these words. “ The grand jury impanelled, sworn and charged for the body of this county, this day returned into court, and presented an indictment against John P. McGtuillen, for an assault with intent to rob, and an assault with intent to kill, a true bill.” The indictment thus presented contained four counts; 1st. For an assault with a stick upon Michael Carrol with intent to steal; 2d. An assault with a knife on Michael Carrol with intent to steal; 3d. An assault with a knife on Michael Carrol with intent to rob; 4th. An assault with a knife on Michael Carrol with intent to kill. On the third day of the same term, the following entry was made, to wit: “ The defendant, by S. C. Cox, saith that he is not guilty in manner and form as in the indictment against him is alleged, and of this he puts himself upon the country, and the attorney for the commonwealth likewise, and the trial of the issue is deferred until the next court.” At the March term, 1846, the following entry, made on the third day of term, appears in the record, to wit: “This day came the plaintiff, by Fulton E. Anderson, district attorney, and the defendant in his own proper person, and the said defendant having been arraigned at the last term of this court, pleaded not guilty, and put himself upon the country, and the district attorney likewise, and therefore the following named persons were selected from the regular panel, to wit: James Readheimer and Turner Joyner, and the regular panel being exhausted, the sheriff was directed to summon from the bystanders a sufficient number of the good and lawful men of the county of Washington, to complete said jury,” &c. The order then proceeds to state that five other jurors were selected from those summoned by the sheriff from the bystanders, and the whole seven were received by the defendant. The sheriff then reported that there were no other bystanders present,1 liable to serve as jurors. And he was directed by the court to summon from the county a sufficient number of good and lawful men to complete the jury on the next day, at ten o’clock. “And thereupon the persons selected as jurors, were charged according to law, and required to be in attendance the next morning at ten o’clock.” On the fourth day of the term, came the plaintiff by the district attorney, and the defendant in his own proper person, when five other jurors were “ tendered by the district attorney on behalf of the state, and accepted by the defendant in his own proper person; and the whole number of jurors in this cause were sworn, and impaneled according to law. Before the jury were sworn, the defendant, at the March term, 1846, moved the court to quash the indictment, for the following reasons, to wit:
    “ 1st. Because the writ of venire facias returnable to the October term, A. D. 1845, of the said Washington circuit court, was defective in this, that the jurors drawn to serve at the said term, were not drawn in the presence of the judge of probate of the said county of Washington.”
    “2d. Because the said jurors were drawn by the sheriff and clerk of the county of Washington aforesaid, without the presence of the said judge of probate, to wit: on the 13th day of September, 1845.”
    “ 3d. Because the said jurors were not drawn by the said clerk and sheriff in the term time of said circuit court of the county of Washington, as required by law.”
    “4th. Because the said grand jurors were not, nor was any or either of them, at the said October term, 1845, of said court, sworn to inquire in and for the body of the said county of Washington, as by law required.”-
    “ 5th. Because the writ of venire facias aforesaid, returnable to the October term, A. D. 1845, of the said circuit court, was defective in this, that it did not command the sheriff of said county to summon house-holders, or free-holders, as required by law, who are competent to serve as grand jurors.”
    “6th. Because neither the record, nor any paper, filed in^ said circuit court, shows that the names of the persons mentioned in the said venire facias, were drawn from Box No. 1, as the law directs.” Which motion was overruled by the court, and the defendant excepted. The defendant then, and also before the jury were sworn, moved the court for leave to "file three pleas in abatement, which were in substance as follows, to wit: 1st. That the grand jurors by whom the indictment was found, were not, nor was either of them, sworn to inquire in and for the body of the county of Washington, as required by law; 2d. That the grand jury, which found the indictment, was .composed of persons, drawn by the clerk and sheriff without the presence of the judge of probate of Washington county, on the 17th day of September, 1845, and therefore illegal and void; 3d. That the foreman of the grand jury, which preferred the indictment, was not sworn as such, either before, or at the time of returning the indictment into court. But the court overruled the motion, and refused to grant the defendant leave to file all, or either of the pleas; to Vhich the defendant also excepted. The jury were then sworn, the cause tried, and the defendant found guilty as charged in the first and third counts of the indictment; and not guilty as charged in the second and fourth. Several bills of exception were filed by the defendant, to sundry opinions of the court, in giving instructions asked by the district attorney, and refusing to give those asked by defendant, and in overruling motions for a new trial, and in arrest of judgment, in one of which bills of exceptions all the evidence offered on the trial is set out. But neither the evidence, nor the instructions given or refused in the circuit court, were considered in this court, and it is not important to notice them further in this statement of the case. The defendant, was sentenced to five years’ imprisonment in the penitentiary. To reverse which he now prosecutes this writ of error, and assigns the following errors, to wit: —
    1. The record does not show that the grand jury by whom the indictment was found, was charged by the court.
    
      2. The record does not show that the defendant, the plaintiff in error, ever pleaded to the indictment, or that any issue was made up for the jury to try.
    3. It appears from the record, that seven of the jurors by whom the plaintiff in error was tried, were not sworn until the day after their selection, and in the mean time were permitted to disperse.
    4. It does not appear from the record, that the jury were sworn to try any issue between the state and the plaintiff in error, or what they were sworn to do.
    5. The court erred in refusing to permit the accused to file the pleas in abatement to the indictment by him tendered.
    6. The first instruction of the court to the jury is erroneous.
    7. The court erred in refusing to give the jury the instruction asked by the. accused, and in giving one in lieu thereof, uncertain and vague in its terms, and calculated to mislead the jury. .
    8. The court erred in refusing to reduce to writing the instructions given to the jury.
    9. There are other errors manifest in said record, all which the plaintiff in error is ready to verify, wherefore he prays judgment of reversal, &c.
    
      John J. Guión and E. G. Walker, for plaintiff in error.
    1. The record should show that the grand jury were charged by the court before they retired to consider of presentments or indictments. 1 Chit. Crim. Law. 313.
    2. There is no plea to the indictment. The plea by attorney is a nullity. A defendant charged with felony, must plead in proper person upon his arraignment. Chitty’s Crim. Law, 416, 436, 472 ; Stephen’s Crim. Law, 290 ; Barbour’s Crim. Treatise, 300, 304; Arch. Crim. Prac. 93.
    3. There was no arraignment of the prisoner. Arraignment is necessary, and it is error not to state it in the record. Chit. Crim. Law, 415 — 419; Stephens’ Crim. Law, 279; 4 Black. Com. 375 ; 4 Com. Digest, 701.
    4. Seven persons elected as jurors, were not sworn until the day after their election, but were permitted by the court to disperse until the next day. They should have been sworn and impanelled as they were elected. Chit. Crim. Law, 552.
    5. The record does not show what persons were sworn on the jury, or what they were sworn to do. They should have been sworn “ to well and duly try the issue joined, and a true deliverance make between the state and the prisoner at the bar.” Chit. Crim. Law, 552.
    6. The court erred in rejecting the pleas in abatement offered by the prisoner. No plea of not guilty having been entered, the prisoner had a right to plead abatable matter. The pleas contain abatable matter of defence. Chitty’s Crim. Law, 422, 435, 437; 5 Porter’s R. 130, 474; 7 Yerg. 271; 4 Dev. 305 ; 7 Leigh, 747; Meigs R. 192.
    7. The court erred in refusing to give the first instruction asked for by the accused. The charge asked for contains a plain legal proposition, with which every lawyer is familiar, and needs no authority in support of its correctness. That it was the duty of the judge to give the instruction asked in words and figures as written, or refuse it, see pamphlet acts of 1846, p. 125.
    
      John D. Freeman, attorney-general for the state.
    1st. It is admitted that the grand jury should be charged, but the charge is no part of the record, and is no part of the proceedings in this case to which the prisoner could except.
    
      2d. It is true, that the record shows that the defendant plead by attorney, but it is also stated, that “ the defendant appeared in his own proper person, and (having been arraigned at the last term of this court) pleaded not guilty, and put himself upon the country,” and thereupon the fol-ing named persons were selected from the regular panel, &c. 1 How. 167.
    3d. It is admitted that an arraignment is necessary, but it is contended that an arraignment is merely placing the prisoner at the bar, to answer the charge preferred in the indictment. 1 Chitty, 419; Com. Dig. indictment M. It appears in this case, that the prisoner plead “not guilty,” first by his counsel, and secondly ore tenus in his own proper person. And it is submitted that this is a sufficient statement of the arraignment, in the absence of all exception to the mode of arraignment by the prisoner below. 1 How. 167.
    4 th. It is likewise stated in the record, that two jurors were selected from the regular venire when the same was exhausted — the sheriff was then directed to summon from the bystanders a sufficient number, &c., whereupon five more jurors were selected, making seven in all; “ and the whole of said jurors were received by the defendant,” and there being no more bystanders in attendance, the sheriff was directed to summon a sufficient number of good and lawful men from the body of the county, to appear at ten o’clock on the following morning; “ and thereupon the persons selected as aforesaid were charged according to law, and requested to be in attendance to-morrow morning, at ten o’clock. On-the following day the prisoner again appeared in person, and the sheriff having summoned the jurors as directed, five more jurors “were tendered by the state and accepted of by the defendant in his own proper person.” The names of the jurors so accepted by the defendant are all given. The record then states, that “ the whole number of jurors in this cause were sworn and impanelled according to law. There are no exceptions showing that the jurors were not sworn according to law ; the form of the oath is no part of the record, unless made so by bill of exception, which is not done. This court will 
      therefore presume that the jury were selected according to law, as stated by the record. 1 How. 498 ; 2 Ibid. 655 ; 4 S. & M. 579.
    5th. The fifth assignment is answered by'the above.
    6th. The pleas in abatement were properly rejected because they were not offered until after the defendant had plead not guilty, and the jury had been impanelled, and accepted by the prisoner to try the issue of not guilty. The record says, “that on the fourth day of the term, and before the jury retired from the bar, the defendant moved the court to quash the indictment,” &c.- “The defendant then moved the court to file three several pleas in abatement, which motion was overruled.” See 3 How. 27, as to exceptions to jury. 1 Chitty, 309; Bac. Abr. Juries A.; 9 Mass. Rep. 107, 116; 1 Blackf. 318, 390 ; 2 Brown, 323 ; 2 Pick. 563 ; 1 Burr’s Trial, 38-41; 2 S. & M. 497; 5 Ibid. 681. Challenge to the array denied, (H. & H. 498,) but not to individual jurors.
    7th. The charge given by the court was in substance the charge asked by the prisoner. The law of 1846 does not apply to criminal cases, the same being a statute to regulate the practice in civil cases only; hence the meaning of the terms used in the statute must be construed with reference to the subject-matter of iegislation. Dwarris on Statutes; 2 S. & M. 17.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

The plaintiff in error was indicted for an assault, committed with intent to rob, and found guilty on the first and third counts, and not guilty on the second and fourth. The case is brought up on a writ of error, and a number of errors are now assigned for reversing the judgment. We shall proceed to consider of the sufficiency of such as seem to require to be noticed.

1st. It is said that the record does not show that the grand jury were charged. It is the duty of the circuit courts to charge the grand jury when impanelled, in regard to the nature of the duty which they are required to perform, and- the motives which should govern them in the discharge of that duty, but the charge so given is not to be placed upon the record, nor can it be essentially necessary that it should appear by the record that it was given, as the matter charged does not constitute a ground of error. But as it constitutes part of the duty of the court to give it, we must presume that it was given unless the contrary is shown. In criminal, as well as in civil cases, the rule prevails that the party who complains of the judgment must make the error apparent, and if it is committed in reference to a matter which does not constitute a part of the record, it must be placed there by bill of exceptions.

2d. The second error assigned is, that it does not appear that the accused ever pleaded to the indictment. The law undoubtedly is that the defendant must plead in person. In this instance there was a plea by attorney, but that was a nullity. But there may be some doubt whether he did not plead at the subsequent term when he was tried. The record contains an entry in these words : This day came the plaintiff, by Fullon E. Anderson, Esq., district attorney, and the defendant in his own proper person, and the said defendant having been arraigned at the last term" of this court, pleaded not guilty, and put himself upon the country, and the district attorney likewise.” It would seem quite probable that this entry has reference to the plea entered at the former term. The true sense is rather obscure for want of punctuation. But it does appear from this entry, that the defendant had been arraigned at the previous term. By looking at the record of the previous term, no arraignment is mentioned. It was incompetent for the clerk at a subsequent term, to make any entry of what had transpired at the preceding term. The consequence is, that it does not legally appear that the accused ever was arraigned, which was error. 2 Hale’s Pleas of the Crown, 217. The regular time for pleading is when the prisoner is arraigned ; it is the more probable, therefore, that the plea by attorney, which was doubtless put in at that time, is the plea referred to in the entry, quoted as having been pleaded at a former term.

3d. It is thirdly assigned that seven of the jurors were tendered to the prisoner and elected, and permitted to disperse until next day without having been sworn, and that they were not sworn until next day, when the panel was completed. The record shows this to have been the fact, and it was a palpable error. When a juror is elected, he must remain under the care of the court or an officer, before as well as after he is sworn, and it is error to permit the jury to disperse without the consent of the prisoner. By permitting them to go at large, they were liable to be tampered with, and to imbibe prejudices against the accused. It is immaterial whether improper influences have been exerted or not; the only safety is in keeping the jury free from a liability to such influences. These persons, although not sworn, had been selected by the prisoner; they were known as part of the jury, and, by mixing with the crowd which is usually in attendance on a court, they were exposed to the danger of receiving a bias against the prisoner, if any one happened to desire to bring about his conviction by unfair means. Or if prejudices existed against him in the community, as is sometimes the case, there was danger that they might be communicated to the minds of these jurors, without their being aware of the motive or the effect. Perhaps the prisoner had a right to object to them the next day before they were sworn; if so, they should have been retendered to him. But even if he had such rights, it did not cure the error in permitting them to disperse.

It is also assigned as error, that the court refused to allow the accused to file three pleas in abatement, the first of which avers that the grand jurors were not sworn according to law; the second, that they were not drawn according to law; and the third, that the foreman was not sworn as such. It is said these pleas were tendered before the prisoner pleaded not guilty. We have already seen that it is doubtful whether the accused ever did plead in person to the indictment. If he did not, these pleas were offered in time, but if he had previously pleaded not guilty, of course he could not afterwards plead in abatement. We are uninformed as to the precise ground on which these pleas were rejected. Before us the question has been argued as though the pleas were rejected because no exception can be taken to the competency of the grand jury by plea in abatement. The law requires that grand jurors shall possess certain qualifications. From the list returned by the assessor, the jurors names are to be placed in a box and drawn in a particular manner, either before the circuit court, or before the probate court, and a venire is to issue containing the names so drawn. From the number of jurors summoned as directed, the grand jurors are to be drawn by lot, who, when so drawn, shall constitute the grand jury. In view of these several provisions, it is believed that a grand jury, composed of members who do not possess the requisite qualifications, or who have not been drawn, summoned and impanelled in accordance with the law, have no power to find a valid indictment. These restrictions and requisites have been imposed for wise purposes. They are guards thrown round the liberty of the citizen. They constitute an important part of the right of trial by jury. A grand jury does not, by our law, consist of thirteen or more men, congregated by the mere order of court, or by accident, in a jury box; but it consists of the requisite number of competent individuals, selected, summoned and sworn, according to the forms of law, and if the law be not followed, it is an incompetent grand jury. If this be so, it results as a necessary consequence, that any one indicted by such a jury, may question their power; he cannot be called to answer a charge against him unless it has been preferred according to the forms of law. The question is, how is this to be done? A prisoner who is in court, and against whom an indictment is about to be preferred, may undoubtedly challenge for cause; this is not questioned. But the grand jury may find an indictment against a person who is not in court; how is he to avail himself of a defective organization of the grand jury ? If he cannot do it by plea, he cannot do it in any way, and the law works unequally by allowing one class of persons to object to the competency of the grand jury, whilst another class has no such privilege. This cannot be. The law furnishes the same security to all, and the same principle which gives to a prisoner in court the right to challenge, gives to one who is not in court the right to accomplish the same end by plea, and the current of authorities sustains such a plea. True some may be found the other way, but it is believed that a large majority of the decisions are in favor of the plea. To the list of authorities cited by counsel may be added the name of Sir Matthew Hale, which would seem to be sufficient to put the question at rest. 2 Hale’s Pleas of the Crown, 155. Vide also Sir William Withipole’s Case, Cro. Car. 134-147. A different doctrine seems to have been holden in the case of The Commonwealth v. Smith, 9 Mass. R. 107, but that case was very much doubted afterwards, in the case of The Commonwealth v. Parker, 2 Pick. R. 550. In the latter case, the court suggested the difficulty that might arise in the application of such a rule to a prisoner who was not present. In such cases, it was intimated that the rule would not be followed. The conclusion is, that these pleas were improperly rejected; that is, assuming that they were tendered before the prisoner had pleaded not guilty. Pleas in abatement in criminal, as well as in civil cases, must be pleaded at the proper time. By denying the charge, the accused waives matter in abatement. We do not of course decide on the technical sufficiency of these pleas. That is a question which could only be raised by demurrer after they were received. It is true, that a plea which is a mere nullity may be rejected, but these are not so obviously defective and inappropriate as to require them to be so treated.

It is not deemed necessary that we should notice particularly the instructions given or refused, as the other points dispose of the case, and the same difficulties may not again arise.

Judgment reversed, and cause remanded for a new trial.  