
    James Rawls vs. The State of Mississippi.
    A bill of exceptions, which states that the judge who tried the cause, refused to sign it, and that the two persons who did sign it were practising attorneys of the court, and present at the trial, is in accordance with the statutes, and, therefore, sufficient.
    The incompetency of the grand jurors, by whom an indictment is preferred, may be pleaded by the defendant in abatement.
    Where the defendant pleaded, in abatement, that six of the grand jurors who found the indictment against him, were not competent, not having been drawn and summoned according to law, and issue was taken on the plea, and on the trial, the district attorney read to the jury the caption of the record, which, after reciting the term of the court, proceeded thus : “A grand jury of inquest, for the body of this county, was drawn and impanelled from the regular venire, namely : ” naming the grand jurors ; it was held, to be competent for the defendant to read, in evidence, to the jury, the original venire facias, and that being the process which was referred to, as furnishing the names of the persons mentioned in the caption of the record, if it contradicted the caption of the record, it must control and prove that the caption was untrue.
    R. was indicted for exhibiting a faro-bank ; he pleaded, in abatement, that six of the grand jurors who found the indictment, had not been drawn and summoned, according to law, and were not, therefore, competent grand jurors, and issue was taken on the plea ; on the trial, the district attorney read to the jury the caption of the record, which, afterreciting the term of the court, proceeded in these words : “ Agrandjury ofinquest, for the body of this county, was drawn and impanelled from the regular venire, namely : J. N. C.,” &e., naming all of the grand jurors, and rested the case; the defendant then offered to read the original venire facias, upon which the names of the six grand jurors did not appear, which, being objected to, was ruled out by the court; the defendant then offered to prove, by a deputy sheriff, who was the officer of the court, that when he called the list of jurors regularly summoned, a sufficient number answered to their names, and were present in court, to constitute a grand jury, and that the six persons mentioned in the plea, were, by the order of the judge, substituted for six of the regular panel, who were then in attendance, and who had brought in their substitutes, and tendered them, and the court received the substitutes, and discharged the original jurymen, and that the witness was instructed to insert the names of the substitutes on the panel ; the regular jurors, who employed substitutes, were also offered, to prove the fact of substitution, all of which evidence being objected to, was ruled out by the court: Held, that the venire facias ought to have been admitted, and being the better evidence, it would have proved the caption of the record to be untrue ; the parol evidence would have explained and shown how the discrepancy in the record occurred ; it was pertinent to the issue, which was not an immaterial one, and ought not to have been excluded.
    In forming a grand jury, the circuit courts in this state have no power to receive substitutes for any part of the regular panel; and if they do receive substitutes, the grand jury thus formed, will be unlawful, and any indictment found by them, may be abated by the plea of the defendant.
    Where the defendant pleads in abatement to an indictment, and the plea is demurred to, and the demurrer overruled, the judgment of the court should be that the prosecution abate.
    ERROR from the circuit court of Warren county; Hon George Coalter, judge.
    This was an indictment found by the grand jury of Warren county, at the April term, 1845, of the circuit court, against James Rawls, for exhibiting a faro-bank. The defendant pleaded three pleas in abatement. The first was, “ that Joseph N. Craddick, Robert M. G. Stewart, Plenry Bruce, James Folkes, Thomas J. Hanna, and James Billitt, six of the grand jurors, by whom the said indictment was found, and returned into the said circuit court, at the said April term thereof, were not all of them, the above-named six grand jurors, or any one of them, at the time they so acted, and at the time said indictment was found and returned, duly and legally qualified to act as such grand jurors, in this, they, the said six grand jurors, nor any one of them, had not then and there been drawn by the. clerk and sheriff of the county of Warren aforesaid, either at a regular term of the said circuit court, (next preceding the said April term of the said circuit court,) there in open court, or by the said clerk and sheriff, and in the presence of the judge of probate of the county of Warren aforesaid, sixty days next before the said April term of the said circuit court, of the county of Warren aforesaid, as jurors liable to serve for the first week of the aforesaid circuit court, at the said April term thereof, then and there from a list of the names of all the freeholders, (being citizens of the United States,) and house-holders of the county of Warren aforesaid, as liable to serve as jurors in the circuit court of the county of Warren aforesaid, as returned either in term time of the said circuit court, or to the clerk thereof, at his office, in vacation, by the assessor of taxes of the county of Warren aforesaid; nor were all of them, the above-named six grand jurors, nor was any one of them, then and there summoned, as persons liable to serve as jurors for the first week of the said April term of the said circuit court of Warren county aforesaid, then and there, by virtue of a special writ of venire facias, then and there awarded by the said circuit court, at the said April term thereof, directing the said sheriff of the said county of Warren, to summon persons there liable to serve as jurors, at the said April term of said circuit court, for the first week thereof; nor were all, or any of the above-named six grand jurors, then and there summoned, as tales jurors, by the said sheriff, as liable to serve as such jurors, for the first week of the said term of said court, then and there, by virtue of an order of said court; nor had all and every one of the jurors of the regular panel of the jurors summoned, and in attendance, at the said term of said court, for the first week thereof, failed in their attendance at the said April term of said court, for the first week thereof; nor had the regular panel of the jurors summoned, and in attendance upon the said court, at the said term thereof, as liable to serve as jurors for the first week, been gone through with, then and there, to constitute a grand jury, to serve at the said term of said court, by lot, when the names of the said six grand jurors, above-mentioned, were drawn, by lot, to serve as grand jurors, for the said term of said circuit court; nor were all of the above-named six grand jurors, nor any one of them, summoned by the sheriff of said county, from the by-standers then and there, to serve as jurors, for the first week of this said term of said court,” &c. The second, was a v plea of misnomer, that the defendant was baptized, and always known and called by the Christian name of James I., and not James. The third was, that the six persons named in the first plea, were introduced into court by six ,of the regular venire men, and tendered as substitutes for them; that the court received the substitutes so tendered, and discharged the six regular venire men, who thus furnished substitutes; and that the indictment was found by a grand jury composed, in part, of the six persons received by the court as substitutes for the six regular venire men who were discharged, áte. The district attorney took issue on the first plea, moved to strike out the second, and demurred to the third. The court ordered the second plea to be stricken from the record; sustained the demurrer to the third; and the case was submitted to a jury, to try the issue joined on the first plea. Upon the trial of this issue, the district attorney read, from the record, the following entry ; namely : “ Be it remembered, that heretofore, to wit: at a circuit court held in, and for the county of Warren, on Thursday, the 24th day of April, in the year of our Lord one thousand eight hundred and forty-five, a grand jury of inquest, for the body of this county, was drawn and impanelled from the regular venire, viz. : Joseph N. Craddick, Foster Folkes, Stephen Simmons, Belfield Featherstun, Zenas Witham, James Patterson, Henry Bruce, James Folkes, George B. Williams, David Stout, R. M. C. Stewart, Thomas J. Hanna, James Billitt, Amos Saunders, Joseph P. Hawks, and Benjamin Phillips. The court appointed Joseph N. Craddick, foreman,” &c., and rested the case. The defendant then offered to read the original venire facias, and the sheriff’s return indorsed thereon, which did not contain the name of either of the six persons mentioned in the plea, but the evidence being objected to by the district attorney, was ruled out by the court, to which the defendant excepted. The defendant then offered Henry Green, as a witness, to prove that he, Green, was a deputy sheriff and the court officer, at the April term, 1845, of the circuit court of Warren, and as such, charged with the impanelling of the grand jury, at that term ; that he called the regular panel of the jurors summoned for the first week of the court, and that a sufficient number of the regular venire men were in attendance on court, and answered to their names, to have constituted a grand jury; and that the six persons named in the plea, were, by the judge of the court, substituted for, and in the place of six of the regular venire men, who were then present, had answered to their names, and remained in court until the grand jury had been impanelled, and that the six persons, named in the plea, were brought into court by the regular venire men, and by them tendered to the judge, as substitutes, and accepted as such by him, and the witness was instructed, by the judge, to insert the names of the six persons so received, as substitutes, upon the regular panel of jurors for the first week of the court; which evidence being objected to by the district attorney, was also ruled out by the court; and the defendant again excepted. The defendant then offered, as witnesses, the persons named in the plea; and also the six regular venire men, for whom they acted as substitutes, to prove the same facts, in regard to the substitution of the persons named in the plea, and the presence in court of the regular ve-nire men, who tendered them as substitutes, when the grand jury were impanelled, offered to be proved by Henry Green ; but the court would not .permit any of the evidence offered, to go to the jury; whereupon, the defendant tendered his bill of exceptions to the several opinions of the court, in ruling out the evidence offered by him; and the court refusing to sign it, it was signed by A. Burnell and P.. W. Tompkins, who were stated, in the bill of exceptions, to be attorneys and counsellors at law, duly licensed and qualified, practising in said court, and present at the trial of this case. This being all the evidence offered, the jury found the issue for the state. The district attorney, thereupon, moved the court to give judgment against the defendant, for the offence charged in the indictment; but the court overruled the motion, and permitted the defendant to plead not guilty; upon which plea he was tried, and found guilty, and sentenced, by the court, to two years imprisonment in the penitentiary. The defendant then removed the case to this court, by a writ of error.
    
      E. G. Walker, for plaintiff in error.
    1st. It was error to exclude, as evidence, (upon the trial of the issue taken upon the plea in abatement,) the writ of venire facias, and also to exclude the testimony of the witnesses offered by defendant. The plea was a good defence in avoidance of the indictment, and, therefore, the evidence should have-been admitted to go to the jury.' 4 Bac. Abr. 525, 530, tit. A; 1 Chit. Crim. Law, 309, n. 83; 6 Binn. 447 ; 2 Pick. 563; 5 Porter, 130, 447; 4 Dev. 305; 7 Leigh, 747 ; 7 Yerg. 271; 2 Black. Com. B. 4, 302 - 306, note.
    2d. It was error to strike out, on motion, the plea of misnomer, that defendant’s Christian name was James I. Rawls, and not James Rawls ; because the plea was a sufficient answer to the indictment against James Rawls, and if the plea was defective, either in form or substance, the district attorney should have demurred specially, setting forth specifically the causes of demurrer. 1 Chit. Crim. Law, 202; 1 Pick. 388; 3 lb. 262, 263; 2 Chit. R. 335; 11 East, 83; 5 Porter, 236; 3 New Iiamp. 31.
    3d. That the court erred in sustaining the demurrer to the plea in abatement, which averred affirmatively that six of the grand jurors who found and returned into court the indictment, had been by the court substituted for six of the regular venire men. The plea was a sufficient answer to the indictment in avoidance.. For neither at common law, nor by statutory provision, can jurors be summoned or selected by the judge, but must be by the sheriff, his officer, or lawful deputy. 4 Bacon’s Abridg. 530, tit. Juries, A; 1 Chit. Crim. Law. 310. See Commonwealth v. Barry, Hardin’s Rep. 229; H. & H. Dig. 450, sect. 44, 45, 46, 48, 49, 6S, 69. See also, 11th section of the Bill of Rights, Constitution of Mississippi.
    4th. There is error in the judgment. The defendant was sentenced to imprisonment in the penitentiary, when, according to the act of 1839, he should have been fined only. See H. & H. Dig. 680, 683.
    
      George $. Yerger, on the same side.
    1. The indictment is returned a true bill, but is not signed by the foreman of the grand jury. The law requires the indorsement on the indictment, that it is a true bill, and signed by the foreman. H. & H. 487, 492; Nornaque v. People, 1 Breeze, 109'; Webster's Case, 5 Greenleaf, 432; Dictum contra, State v. Cal-hoen, 1 Dev. & Batt. 374; also, 1 Nott & McCord.
    2. The defendant pleaded in abatement, that his Christian name was James I. and not James. This is a good plea in abatement. 1 Chit. Crim. Law, 202; Bacon’s Ab. Misnomer, A.; Commonwealth v. Perkins, 1 Pick. Rep. 388; Commonwealth v. Hall, 3 Pick. Rep. 262, 263; 3 New Hampshire Rep. 31, 36 ; 1 Marshall’s Rep. 477, or 4 Eng. Com. Law. Rep; 2 Chit. Rep. 335, or 18 Eng. Com. Law. Rep.
    The case in 5 Johns. 84, was not a criminal case, it was a question of variance, and moreover it is not supported by any authority. It asserts that a man can have but one Christian name. True, but John J., James J., John Thomas, &c., constitute but one Christian name. The authority in Co. Lit. 3 a., does not support it; 3 Co. Litt. 3 a.
    3. The defendant pleaded in abatement, that in impanelling the grand jury, the court discharged the grand jurors of the regular venire, and received other persons as substitutes who had not been summoned. This was not warranted by the statute. H. & H. 490, sect. 44, 45, 46, 48, 49, 68, 69. There is no law authorizing substitutes for a grand jury. That this can be pleaded in abatement, where the party has not had an opportunity to challenge the jury, is' clear from the authorities. Chit. Cr. Law, 309, 310 ; 7 Yerg. R.; 5 Porter, 130; 7 Leigh R. 747; 4 Dev. Rep. 305. See also, 2 Pick. 550; 3 Blackf. 37; 6 Binn. 447. In the latter case it was held to be error, if the record did not show the jury was drawn as required. The cases in 6 S. & M. 680, 3 How. 27, and 1 Blackf. 318, do not conflict with the other authorities, as will be shown in argument.
    4. The first plea was replied to, and found against the defendant, but this was because the judge refused to hear any evidence to prove it, as the bill of exceptions shows.
    If it can be pleaded, the plea certainly can be supported by proof. All the above cases show this. The fact that it is stated in the record, that they were good and lawful men or jurors, does not preclude proof, to show they were not, upon a plea of abatement; otherwise there would be no use for the plea. The statute requiring the qualifications of jurymen, would thus be completely evaded.
    The record in this case is made to tell an untruth. It says they were of the regular venire. The proof is abundant that they were not.
    
      5. The indictment concludes contrary to the form of the statute. It should conclude contrary to the form of the statutes. Archbold’s Crim. Law; State v. Paul, 2 Dev. Rep. 202.
    
      John D. Freeman, attorney-general, for the state.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

To an indictment for having exhibited a faro-bank, the accused filed three pleas in abatement, two of which go to the competency of the grand jury who found the indictment, and the other is a plea of misnomer.

The first plea is that six of the grand jurors were not legally qualified to serve, inasmuch as they had not been drawn by the clerk and sheriff in either of the modes prescribed by law, from a list of freeholders and householders, returned by the assessor, nor had they been summoned as persons liable to serve on juries by virtue of a special writ of venire facias, nor were they summoned as tales jurors, nor had the regularly summoned jurors failed to attend, nor had the panel been exhausted, nor were they summoned from the bystanders. The plea is full and specific in stating that these grand jurors were not summoned and impanelled in any mode prescribed by law. The district attorney took issue.

The second plea to the competency of the grand jury, is in substance, that the six persons named in the first plea, were substitutes who were received by the court to serve in place of so many of the jury summoned under the venire, and who were there in attendance on the court, and who had procured the six persons to serve in their places. To this plea there was a demurrer which was sustained.

On the trial of the issue taken on the first plea, certain evidence wap offered and ruled out, to which the accused excepted, but the court refused to sign the bill of exceptions, and it was signed by two attorneys of the court. The sufficiency of the bill of exceptions, as a preliminary question, is denied, but it seems to have been signed in strict accordance with the statute; it states that the judge refused to sign it, and also that the persons who did sign it, were practising attorneys of the court, and present at the trial. The question then arises, was the evidence properly ruled out. The defendant offered to read the original venire facias, returnable to the April term, 1845, together with the sheriff’s return. If this evidence was relevant, it was surely competent. It was the process of the court, and competent to- prove any fact stated on its face, if such fact was in issue. The defendant pleaded that six of the grand jurors who found the indictment were not competent, not having been drawn and summoned according to law. On this plea issue had been taken. If the names of the objectionable persons did not appear in the venire, the first point in the plea was established. This made it manifest that they had not been summoned under the original venire facias, and after establishing that fact, if by other proof it could be shown that they had not been summoned according to either of the other modes provided by law to supply a deficiency caused by the non-attendance of a sufficient number of the original panel, the defence was made out. . The process was not inadmissible because it contradicted the caption of the record, which had been read by the district attorney. The caption after reciting the term of the court, proceeds in these words ; “ a grand jury of inquest for the body of this county, was drawn and impanelled from the regular venire, viz., Joseph N. Craddick, &c.” beginning the list with the name of one of the persons named in the plea as having been irregularly impanelled. No such name is found in the process, which was the foundation of the record, and no record copld be true which did not follow it. One or the other was untrue, and as the process was referred to as furnishing the names of the persons mentioned in the recital or caption, it must control, and prove that the caption was untrue. By the plea it is said that the indictment was found by men who were not a part of the original, panel, and the venire was conclusive proof on this subject, and ought to have been received.

The defendant next offered to prove by Henry Green, who was deputy sheriff, and the court officer, that when he called the list of jurors regularly summoned, a sufficient number answered to their names, and were present in court, to constitute a grand jury, and that the six persons mentioned in the plea, were, by the order of the judge, substituted for six of the regular panel, who were then in attendance, and who had brought in their substitutes and tendered them, whereupon the court received the substitutes and discharged the original jurymen; and the witness was instructed to insert the names of the substitutes on the panel. The regular jurors, who had employed the substitutes, were also offered to prove the fact of substitution ; but this testimony was all excluded. It furnishes the key to the discrepancy between the caption of the record, and the venire facias, and shows, beyond doubt the truth of the matter pleaded. We can see no reason whatever for its exclusion. True, it contradicts a recital in the record, but better evidence had been offered, to wit, the venire facias, to prove that the recital in the record was not true. The fact of its untruth being established, it was competent to show how the variance had occurred. An alteration had been made in the panel, and from the panel so altered the record was made up. “ It cannot be doubted,” says Chief Justice Parker, “ that anything produced as a record may be shown to be forged or altered ; if it were not so, great mischief might arise. A record is conclusive evidence, but what is or is not a record, is matter of evidence, and may be proved like other facts; otherwise there would be no remedy.” Brier v. Woodbury, 1 Pick. Rep. 362. We are not called on to say, whether parol evidence in a case like this, may be introduced to falsify the record. The proof in this instance tended only to account for a discrepancy between different parts of'the record. The recital would have been shown to be untrue by the venire. A question of power tvas raised, and the proof showed a want of power in the court. The evidence was pertinent to the issue, which was not an immaterial one. We have already decided that the incompetency of the grand jurors is a matter which may be pleaded in abatement; and we conclude that this evidence ought to have been admitted, as if true it defeated the indictment. McQuillen v. The State, ante, 587.

It is agreed that there was another plea in abatement, which averred the substitution of the grand jurors in the manner above stated, to which a demurrer was sustained. This brings up fairly the legality of the course pursued in taking substitutes for part of the regular panel. In the case above' referred to, it was decided that the law must be followed in forming the grand jury, and that an indictment found by an incompetent grand jury may be quashed on plea. We will only add that there is no law which authorizes the court to take substitutes for any portion of the regular panel. If it can for one, it can for the whole. It is useless to comment on the consequences which might result; the eifect would be to break down the provisions of the law. In the case of Davis v. The Commonwealth, a report of which was cited in Commonwealth v. Parker, 2 Pick. Rep. 550, it was discovered, after a verdict of guilty against the prisoner, that one Locke, who served on the grand jury had not been chosen a grand juror, but that the name of one Burr, who had been chosen, had been erased from the return of the venire, and Locke’s name inserted in its place. The court of common pleas arrested the judgment, and this decision seems to have met the approbation of the supreme court. This case is in point, and if it be right to arrest the judgment, surely it cannot admit of question whether such matter is pleadable in abatement. The demurrer to this plea should have been overruled, and the judgment would then have been that the prosecution should abate. Stephen on Pleading, 107. And as we are to give the judgment which the court below should have given, that must be our judgment.  