
    Horsey vs. The State.
    Writ of error to the justices of a special court of Oyer and Terminer aiid Gaol Delivery for Worcester county, to remove the proceedings ort a judgment in a criminal prosecution, against the plaintiff in error, for murder. The verdict in the court below was guilty, and the prisoner, by his counsel, moved the court in arrest of judgment, and assigned the following reasons: 1. Previous to the adoption of the constitution of this state, all the criminal jurisdiction of the province was vested in, and exercised by, the provincial and county courts. That instrument recognized the county courts, and established a court called The General Court, to which the powers and jurisdiction, exercised by the late provincial court, were transferred. By that instrument an executive power was provided for the .state, consisting of a governor and council. The governor is expressly prohibited from the exercise of any prerogative by virtue of any law, statute, or custom of England. The issuing of commissions of Oyer and Terminer in England, is an exercise of the royal prerogative, inherent in the King by the common law. By the constitution of this staté, the. powers to be exercised by the governor and council are expressly prescribed; and it is provided and enjoined, that all judges and justices should thereafter be appointed by the governor, by and with the advice and consent of the council. The persons named in a commission of Oyer and Terminer, &e. and authorised thereby to hear and determine criminal charges in any particular place, when acting by virtue thereof, are in the exercise of high and important judicial powers,and are known to the law as justices. The act of assembly, passed at November session t8&r; ch. 1, by virtue of which the commission, under which this court has-been, and now is sitting, has been issued, gives the power to the governor alone, without the advice and consent of -the council, to issue commissions of Oyer and Terminer. Inasmuch, therefore, as the justices of this court have been appointed and commissioned by the governor alone, it is asserted that, under the constitution of the state, the appointment is not only unauthorised, but by the language thereof, expressly prohibited.
    
      A special court of oyer and terminer and gaol delivery, acting: under a commission from the governor, has ail the powers and jurisdiction which can he exercised by the county court, in criminal
    Certain objections, made itt arrest of judgment on a verdict of guilty in the above ease, overruled* viz. Variance* between the names of the grand and petit jurors who round the indictjnent and verdict,- and those return ed on the venire —As to ihe Manner of issuing the venire to summon thejnry — thecomjMttmg the prisoner without his being brought into court, by a capias —the not issuing- a capias — there being no presentment found; and it not appealing that the jurors were freeholders.
    
      2. The jurors, whose names are on the venire, are th« proper persons to find a bill of indictment. The indictsnent in this case appears to be found by other jurors, to wit, Roland E. Bevans and Edward Briddle, whose names are not on the venire. £The sheriff’s return stated that lie had summoned, amongst others, ‘‘Bolin E. Bevans”• and «Edward Bridle.”]
    
    
      5. The venire facias issued in this ease, whereby the petit jurors were summoned, was signed by the clerk of Wor tester county court, and under the seal of Worcester county court; whereas by law it ought to have been under the hands and seals; of the justices of this court — the clerk of Worcester county court not being an officer of this court. £The venire to summon the grand jurors, and the venire to summon the, petit jurors, were both tested in the names of William Polk, John Done and William Bond Martin, Esquires, judges of tbs court of oyer and terminer, &cr and signed by the clerk, and sealed with the seal of W'ot-> tester county court. 3
    4. When this court met under the commission, Horsey, the prisoner, was not in the. gaol of Worcester county by virtue of any legal commitment or process; and this court have jurisdiction only to hear and determine cases where the offenders were legally in gaol; and during iheir session they have no legal right to commit offenders, and to hear ■and deterniine on the offences for which they may be so committed.
    5. There is a variance between the venire for the petit jury, in the names of the jury, and the names of the jury éropannelled to try the case, and. who have found the verdict.
    6. No capias was issued against Horsey, the prisoner, before he was committed, and a commitment, without being brought into court by a capias, was improper and ill»-
    
      
      7. After the indictment was found, by law, a capias should have issued to bring in the prisoner to answer the indictment, which was not done in this case.
    8. By law, an indictment cannot be found without the presentment of a grand jury, or an order by the county court. [In this case theré was a presentment found by the grand jury summoned under the commission.]
    9. By law, no criminal process can issue or be awarded from any court of original jurisdiction, unless on presentment of a grand jury, or special order of the county court tp be entered on record.
    ■ 10. It should appear by the record that the jurors Were freeholders, which does not appear.
    - The court of óygr and terminer, &c. overruled the motion, and rendered judgment upon the verdict that the prisoner be hanged, &c. The. prisoner obtained a writ of error, and the. proceedings were brought before this court.
    The cause was. argued before Bv-cbanan, Niceols.on., Gantt and Eaule, J.. by
    
      Whittington and Wilson, for. the Plaintiff in.error,
    and by
    J; Bayly, fox; the State.
   JUDGMENT astirmed^  