
    *The Commonwealth v. Thompson.
    July, 1833.
    [26 Am. Dec. 339.]
    Grand Jury — Objection—Juror Nominated Himself to Sheriff. — upon a presentment by a grand jury for gaming, defendant tenders plea in abatement, that one of the grand jurors nominated Mmseii to the sheriff to be put on the panel of the grand jury, and thereupon the sheriff put his name on the panel, and summoned him to serve, without alleging that this nomination of himself by the grand juror was corrupt, or that there was a false conspiracy between him and the sheriff for returning him on the panel: iIjü.d. the plea, is naught, and the court ought not to permit it to be filed.
    Case adjourned from the circuit superiour court of Ohio. The defendant having been presented by the grand jury for unlawful gaming, offered a plea in abatement, stating, that H. Moore, one of the grand jury, nominated himself to the deputy sheriff, to be put on the panel of the grand jurors, and the deputy sheriff' did thereupon place Moore’s name on the panel, and summoned him to serve on the grand jury; and that Moore having so nominated himself, and being so summoned, was sworn, and was one of the grand jury, when the presentment was made. The attorney for the commonwealth insisted, that he ought not to be put to demur or reply to the plea, and objected to the filing of it. And, thereupon, the court, with the consent of the defendant, adjourned to this court, the following questions: 1. Whether the matters set forth in the plea could be pleaded in abatement of the presentment? and if so, 2. Whether the same were well pleaded?
    
      
      Gractl Jury. — See monographic note on ‘'Indictments, Informations and. Presentments" appended to Boyle v. Com, 14 Gratt. 674.
      Abatement — Pleas in. — Pleas in abatement, being dilatory, are not favored. U. S. v. Reeves, 27 Fed. Cas. 751, citing principal case.
      See further, monographic note on "Abatement, Pleas in” appended to Warren v. Saunders, 27 Gratt. 259.
    
   BROCKENBROUGH, J.

The duty of the sheriff is plainly pointed out by the statute. He is directed to summon, before the meeting of the court, twenty-four of the most discrete freeholders of the county, being citizens of the commonwealth and not having certain specified disqualifications. It is necessary for the upright administration of justice, that the whole jury system should be preserved free and uncontaminated. The law demands, that each grand juror shall make no presentment through malice, hatred or ill will; and *that he should not be prevented from making presentments, by motives equally vicious. It also requires, that the sheriff whose duty it is to summon the grand jury, should discharge that duty with the sole view to the public good. It does not seem to be compatible with either of these requisitions of the law, that a corrupt nomination of himself to the sheriff, by a city, zen of the commonwealth, to serve on the grand jury, should be permitted; or that a false conspiracy or corrupt agreement between the sheriff and himself for that purpose, should be tolerated. In Scarlet’s case, 3 Inst. 33; 12 Rep. 98, it was charged, that he well knowing that he was not returned of the grand inquest, procured himself by false conspiracy to be sworn on the same, and it was decided that such procurement was an indictable offence, as well at common law, as under the statute; 11 Hen. 4, ch. 9. And whensoever such corrupt nomination shall be procured, we have the authority of this court, in Cherry’s case, 2 Virg. Ca. 20, for saying, that an indictment or presentment, found by a grand jury so constituted, may be avoided by plea.

But, in the case now before the court, the plea which was tendered does not charge any corrupt nomination of himself by the grand juror, or any false conspiracy between himself and the sheriff, to be returned on the panel. The nomination of himself which is- charged, may have been perfectly innocent, and the court is not authorized to presume the contrary. We have, therefore, no hesitation in deciding, that, in this case, the plea should be rejected.

“This court is of opinion, that it is not proper, in this case, to require the attorne.y for the commonwealth to demur or reply to the plea in abatement which was tendered by the defendant, and that the plea should be rejected.”’ _  