
    John Turns vs. The Commonwealth.
    When a prisoner is indicted, convicted and sentenced in the court of common pleas for the county of Middlesex, at a term which is by law prescribed for the disposition of criminal business only, it is not necessary that it should be averred in the record that the term was held for the disposition of such business.
    Where the record of the court of common pleas for the county of Middlesex, at the first term thereof held in 1842 for the disposition of criminal business, showed that certain grand jurors were duly returned, empar.nelied and sworn, and that, at a subsequent term of said court, held in the same year, the grand jury returned an indictment on which a prisoner was tried, convicted and sentenced 3 it was held, that the record of the conviction need not set forth the empannelling and swearing of the grand jury, but that the court would judicially take notice of the statute (Rev. Sts. c. 136, § 1) which requires grand jurors, in the court of common pleas, to serve at the several successive terms of that court during the year.
    It is not necessary to insert in the record of each particular indictment and conviction the names of the grand jurors who found the indictment.
    The signature of the foreman of the grand jury to an indictment, certifying it to be a true bill, legally imports that it was found by twelve or more grand jurors.
    An indictment for manslaughter alleged that T., on the 25th of September, at Groton, in the county of Middlesex, 11 in and upon one L., then and there being, feloniously and wilfully did make an assault, and with a stone, which said T. then and there had and held, in and upon the head of said L., then and there feloniously and wilfully did cast and throw, and with the said stone, so as aforesaid cast and thrown, the aforesaid L. then and there feloniously and wilfully did strike, penetrate and wound, giving to the said L., by the casting and throwing of the stone aforesaid, in and upon the head of said L., a mortal wound,” &.c. Held, that it was sufficiently averred that T. gave L. a mortal wound, on the 25th, of September, at Groton.
    There is no positive rule of law which requires the names of the jurors, who find a de fendant guilty on an indictment, to be inserted in the record of each particular case.
    Where it appears by the record, that the issue was tried by a jury duly returned and sworn, the legal presumption is, that they were twelve good and lawful men.
    It is not a ground of error, that a defendant, who has pleaded in chief, was indicted and convicted by the name of J. T. otherwise called T. D. 5 misnomer being matter of abatement only.
    Writ op error. The record, as first brought before the court, was as follows: “ Commonwealth of Massachusetts. Middlesex, to wit. At the court of common pleas begun and holden at Lowell, within and for said county of Middlesex, on the third Monday of October, A. D. 1842. The jurors for the Commonwealth of Massachusetts upon their oath present, that John Turns, otherwise called Turns Dunning, of Groton in the county of Middlesex, laborer, on the twenty fifth day of September, in the year of our Lord one thousand eight hundred and forty two, with force and arms, at Groton in the county of Middlesex aforesaid, in and upon one Jonathan Lawrence, in the peace of said Commonwealth then and there being, feloni-ously and wilfully did make an assault, and that he the said Turns, with a certain stone, which he the said Turns in his right hand then and there had and held, in and upon the left side of the head of him the said Lawrence then and there felo-niously and wilfully did cast and throw, and that the said Turns, with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid Jonathan Lawrence, in and upon the left side of the head of him the said Jonathan Lawrence, then and there feloniously and wilfully did strike, penetrate and wound, giving to the said Jonathan Lawrence, by the casting and throwing of the stone aforesaid, in and upon the left side of the head of him the said Jonathan Lawrence, one mortal wound, of the length of one inch, and of the breadth of half an inch, of which said mortal wound he the said Jonathan Lawrence, from the said twenty fifth day of September, in the year aforesaid, to the twenty sixth day of the same September, at Groton aforesaid, in the county aforesaid, did languish, and languishing did live, on which twenty sixth day of the same September, at Groton aforesaid, the said Jonathan Lawrence, of the mortal wound aforesaid, died; and so the said jurors aforesaid, upon their oath aforesaid, do say that the said Turns him the said Jonathan Lawrence, in manner and form aforesaid, feloniously and wil-fully did kill and slay, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.
    “The said John Turns, otherwise called Turns Dunning, is set to the bar to be tried, and has this indictment read to him, and he says that thereof he is not guilty, and thereof puts himself on the country. A jury is therefore empannelled and sworn to try the issue; viz. Nehemiah Ball, foreman, appointed by the court, and fellows; who, after hearing all matters and things relating to the same, return their verdict, and upon their oath say, that the said John Turns, otherwise called Turns Dunning, is guilty. It is therefore considered by the court, that the said John Turns be punished by solitary imprisonment, in the house of correction in said county, for the term of three days ; that he afterwards be confined to hard labor in the said house of correction in said county, for the term of one year; and that he stand committed in execution of this sentence.”
    The assignment of errors was thus: “1. That it doth not appear by said indictment for what purpose the court of common pleas, at which it- was found, was held, or that it was held for the disposition of the criminal business of said county of Middlesex. 2. That it doth not appear by said indictment, that said bill of indictment was found by the grand jury of said county of Middlesex to be a true bill, or who were the members of the grand jury, if any, who found said indictment. 3. That it doth not appear that said court was held by and before any justice of said court. 4. That it doth not appear that the court of common pleas, at which said bill of indictment was found, was the court of common pleas of said Commonwealth. 5. That it doth not appear by the indictment, that it was found to be a true bill by twelve men sworn according to law. 6. That it doth not appear by the indictment in this case, that the said John Turns gave the mortal wound, of which Jonathan Lawrence, mentioned in said indictment, died, within the county of Middlesex aforesaid, or at what time or place said mortal wound was given. 7. That it is not alleged that the said John Turns, otherwise called Turns Dunning, gave the mortal wound set forth in said indictment. 8. That it doth not appear that the verdict was rendered on the oath of twelve men, or who they were, or that they were good and lawful men. 9. That there is no judgment of said court that said defendant is guilty. 10. That said defendant was indicted and convicted by the name of John Turns, alias Turns Dunning, contrary to law.”
    The Attorney General, after oyer prayed and had of the record remitted, suggested that there was “ a diminution of the record in said court of common pleas, touching the indictment, trial, conviction and other proceedings relating to the empan-nelling of the grand jurors for the body of the county of Middle sex, in said court, and in regard to their having been sworn according to law, and to the appearing, empannelling and swearing of the traverse jurors in said court for the trial of the issue aforesaid, and also in the record aforesaid concerning the name and office of the judge of said court presiding at the trial of the issue and at the awarding of sentence in the cause aforesaid: ” And he therefore moved, that a writ of certiorari might issue, directed to the chief justice of the court of common pleas aforesaid., directing him to send up to this court the whole of the proceedings remaining of record in said court of common pleas, touching the premises, that this court might advise thereon. This motion, though opposed by the counsel for the plaintiff in error, was granted.
    In obedience to said writ, a return was made, which set forth, among other things, the following matters of record: 1. That at a court of common pleas, begun and held at Cambridge, within and for the county of Middlesex, on the second Monday of February 1842, by the Hon. Solomon Strong, associate justice of said court, the grand jurors were empannelled and sworn, viz. William Rogers, foreman, duly chosen, and twenty two others named. 2. The several writs of venire facias, directed to the constables of towns, requiring grand jurors to be drawn and summoned to serve at the term of said court to be held at Cambridge, on said second Monday of February 1842, and at every term of said court throughout said year, and until another should be empannelled in their stead ; with the several constables’ returns thereon, showing that the several persons, named above as empannelled and sworn, were drafted and summoned four days before the sitting of said court. ' 3. An alphabetical list of traverse jurors for the court of common pleas for said county, for October term 1842, naming the twelve first on said list as the first jury, of which Nehemiah Ball was foreman. 4. The several writs of venire facias, directed to the constables of towns, requiring traverse jurors to be drawn and summoned to serve at said October term; with the several constables’ returns thereon, showing that the several persons, named in the alphabetical list aforesaid, were drafted and summoned four days'before the sitting of said court at that term. 5. The following: “Commonwealth of Massachusetts. Middlesex ss. At a court of common pleas, begun and held at Lowell, within and for the county of Middlesex, on the third Monday of October Anno Domini 1842; By the Hon. Charles Allen, Esq., an associate justice of said court. For the names of the traverse jurors, who were returned to serve in this present term, see the writs of venire facias, and the alphabetical list of jurors filed of record.” 8. The record as hereinbefore set out, ante, 225, 226, to which were added, at the foot of the indictment, the words “ A true bill. William Rogers, foreman.”
    
      B. F. Butler, for the plaintiff in error,
    waived the 3d, 4th and 9th assignments. 1. The St. of 1839, c. 117, established three additional terms of the court of common pleas in Middle-sex county, for the disposition of the criminal business of said county, and directed that all the civil business in that court, in that county, should be transacted only at the terms theretofore established. The caption of the indictment ought therefore, in order to show the jurisdiction of the court, to have mentioned that the term at which it was found was a team for the disposition of criminal business. 2 Hale P. C. 168, 167. Bac. Ab. Indictment, I. 1 Chit. Crim. Law, 327. 1 Stark. Crim. PI. (2d ed.) 234.
    2. 5. The indictment is defective for the second and fifth reasons assigned for error. 2 Hale P. C. 167. 1 Stark. Crim. PI. (2d ed.) 236. 1 Chit. Crim. Law, 329. Aylett v. The King, 3 Bro. P. C. (2d ed.) 529. The People v. Guernsey, 3 Johns. Cas. 265. 1 Saund. 249, & note. 14 Vin. Ab. Indictment, H. 9. Lists of jurors, &c. on file are not a part of the record. That which is entered at large is the record. Rex v. Walcot, 2 Salk. 632. See also Commonwealth v. Parlcer, 2 Pick. 550, 563.
    6. 7. The want of the averment of a time and place when and where the prisoner gave the mortal wound, is a fatal defect in the indictment. 2 Hale P. C. 179, 180. 1 Stark. Crim. PI. (2d ed.) 58, 59. 2 Hawk. c. 23, <§>$ 88, 89. c. 25, § 77. Bac. Ab. Indictment, G. 4. The Queen v. Brownloio, 11 Adolph. & Elli.s, 119. So is the want of a direct averment that the prisoner gave Lawrence a mortal wound. Long’s case, 5 Co 120.
    8. It should have appeared on the record, that the verdict was found by twelve lawful tnen. 11 Adolph. & Ellis, ubz sup. The King v. Inhabitants of St. Michael, 2 W. Bl. 718. ] Chit. Crim. Law, 505. 2 Hale P. C. 296. Crown Cir. Companion, (7th ed.) 86. Doebler v. Commonwealth, 3 S. & R. 237.
    10. This error is well assigned. 2 Hawk. c. 25, §10 Archb. Crim. PI. (4th Amer. ed.) 25, 26.
    
      
      S. D. Parker, for the Commonwealth.
    1. The Sts. of 1839, c. 117, and 1841, c. Ill, are general statutes, of which the court will judicially take notice. By the former statute, the first term of the common pleas, for the county of Middlesex, is to be held, every year, for the disposition of criminal business, on the second Monday of February; and by the latter statute, the term which was fixed, by the former statute, on the first Monday of November, was changed to the third Monday of October annually. And this indictment was found at a court held on the third Monday of October 1842. As the term then held was for criminal business only, the record shows to this court that the court below had jurisdiction of the offence charged in this indictment. The amended record shows that the grand jury were empannelled and sworn at the term held on the second Monday of February 1842.
    The caption is no part of the indictment; and therefore it is, not error that it is not shown therein that the indictment was found in a court that has jurisdiction; unless, perhaps, where a court acts under a special commission. 1 Saund. 250, d. note The State v. Brickell, 1 Hawks, 354. Rose v. The State, Minor, 28. The People v. Jewett, 3 Wend. 319. U. States v. Grush, 5 Mason, 290. 1 Chit. Crim. Law, 326. Rex v. Gilbert, 1 Salk. 200. Rex v. Royce, 4 Bur. 2085. The State v. Wasden, 2 Taylor, 163. 2 Hawk. c. 25, <§> 124. The King v. Haddock, Andr. 143.
    2. The second assignment is not true in fact. The indictment, as returned on the writ of certiorari, is found by the jurors for the Commonwealth, and signed by William Rogers, foreman of the grand jury, as “ a true bill,” which cannot be a true bill unless twelve at least agreed in finding it. An indict ment, when presented in court, is taken to be the act of all, or of the necessary number. No indictment ever shows what jurors agreed in finding it; and the Rev. Sts. c. 136, <§> 13, forbid grand jurors to state in what manner any of their fellows voted on any question before them. See 1 Chit. Crim. Law, 202. 4 East, 176, note. Rex v. Davis, 1 Car. & P. 470. Webster’s case, 5 Greenl. 432. The State v. Creighton, 1 Nott & M’Cord, 256. Commonwealth v. Walters, 6 Dana, 290. The State v. Long, 1 Humph. 386. If twelve do not concur in finding a bill, the defendant may plead that fact in abatement. Low’s case, 4 Greenl. 439. It has recently been decided in England, that the number and names of the grand jurors need not be inserted in the caption of an indictment. The King v Maish, 6 Adolph. & Ellis, 236.
    5. Taking the whole record together, it appears that the facts exist which this assignment denies. ■ By the Rev. Sts. c. 136, § 1, grand jurors, in all the counties except Suffolk, are held to serve at each term of the common pleas throughout the year. And the amended record shows that these jurors for Middlesex were empannelled and sworn at the first term for the year 1842.
    The qualification of jurors need not appear on the face of the proceedings of courts of general jurisdiction. Collier v. The State, 2 Stew. 388. Cornwell v. The State, Mart. & Yerg. 147. The State v. Alderson, 10 Yerg. 524. Huffman v. Commonwealth, 6 Rand. 693. Jerry v. The State, 1 Blackf. 395. Commonwealth v. Smith, 9 Mass. 109. 1 Chit. Crim. Law, 333.
    6. By the true construction of the indictment, the mortal wound is alleged to have been given at Groton, in the county of Middlesex, on the 25th of September 1842. Jacobs v. Com~ mvnwealth, 5 S. & R. 315. The word “ with,” applied to the casting of the stone, is mere senseless surplusage, which does not vitiate ; as was held in White v. Commonwealth, 6 Binn. 179.
    7. “ Giving ” a mortal wound, is a form of averment often used in indictments, and is equivalent to a direct averment that the prisoner gave the mortal wound. Davis Justice, (1st ed ) 504, 507, 510. 1 Trem. P. C. 7, 11. 3 Chit. Crim. Law, 752, 753-759. 2 Stark. Crim. PI. (2d ed.) 390,397. Archb. Crim. PI. (4th Amer. ed.) 51,381 a. Minkes’s case, March, 79. The State v. Owen, 1 Murph. 452.
    8 A jury, ex vi termini, imports twelve men ; Foote v. Lawrence, 1 Stew. 483 ; and no law of this Commonwealth requires ‘heir names to be inserted in the record of each case tried by •hem. The legal presumption is, that the iurors were good and lawful men, unless the contrary be shown. Baude’s case, Cro. lac. 41.
    In criminal trials, our law requires that the jury be sworn and empannelled in each case ; and no irregularity in the drawing, empannelling, &c. can avail a prisoner, unless he is injured thereby, or unless he makes the objection before the verdict is returned. Rev. Sts. c. 95, §§ 23, 30. By Rev. Sts. c. 137, a prisoner’s rights of challenge are fully secured to him, and the manner of drawing and returning jurors is prescribed. It can, therefore, be of no possible injury to the prisoner, that the names of the jurors are not inserted in the record of his trial. (Mr. Parker exhibited the early records of the court in the county of Suffolk, in which the names of the jurors, who found defendants guilty, were frequently, though not always, omitted.)
    10. The supposed misnomer of the prisoner was matter of which he could take advantage only by plea in abatement. Commonwealth v. Inhabitants of Dedham, 16 Mass. 146, 147. The King v. Checkets, 6 M. & S. 88.
   Shaw, C. J.

This is a writ of error, brought to reverse a judgment, rendered by the court of common pleas for the county of Middlesex, against the plaintiff in error, on an indictment for manslaughter.

When this case first came before the court, with a return of the record upon the writ of error, upon motion of the Attorney General, founded upon a suggestion of diminution of the record, a writ of certiorari was ordered, though opposed by the counsel for the plaintiff in error, directed to the chief justice of the court of common pleas, requiring the entire record to be certified and returned to this court. On the return of the certiorari, the record, amended and completed, was’ returned, whereby several of the mere formal errors, that were assigned, were obviated.

Several errors assigned on the record, were waived on the argument.

The first error relied upon is, that it does not appear by the record’, that the term of the court, at which this indictment was returned and tried, was held for the transaction of criminal business. The argument is, that, as certain designated terms of the court of common pleas for the county of Middlesex are appropriated to criminal business, and certain others to civil, it should appear on the record, that the indictment was found and tried at a term held for criminal business; and that, fcr aught which appears on this record, this indictment may have been found at a term of the court held for civil business, at which it had no jurisdiction.

The answer, we think, is obvious. These terms are fixed by law, and the laws organizing courts of general jurisdiction, and fixing their terms, are general laws, of which courts will judicially take notice. When, therefore, the term is stated on the record, at which the indictment was found, and it appears by the law establishing its terms, that that was a term for criminal business, it sufficiently appears that such was the fact, and that the court had jurisdiction.

The next error assigned is, that it does not appear by the record, that the indictment was found by the grand jury, or that it was found by twelve or more, or that the grand jury were sworn.

Courts are bound to take notice of general laws, directing the mode in which grand juries are empannelled and sworn. In the county of Middlesex, the grand jurors are empannelled to serve for a year, at several successive terms. It now appears by the record, that a grand jury was sworn and empannelled to serve for a period including the term at which this indictment was found. The indictment states; in the usual form, that the jurors on their oath present, &c.; and this is authenticated by the signature of the foreman, certifying it to be a “ true bill.” Such certificate is the proper evidence that it was found by twelve or more grand jurors; it would not be a true bill otherwise. It is the legal import of the certificate, that it was adopted and sanctioned by twelve or more; and as all were sworn, it follows, that it was found and returned by twelve or more sworn grand jurors. We are not aware that it is usual 'or necessary to insert, in the record of each case, the names of the grand jurors. The certificate of the foreman authenticates the act of the body. It could not aid a defendant in exercising a right of challenge; for if he has any right of challenge, it must, to be of any benefit to him, be exercised before the return of the indictment. He may always know, from the general record, who the grand jurors, for the time being, are.

The next error relied on is, that it does not appear by the record, that the mortal blow was given by the defendant in the county of Middlesex.

This is a mere question of grammatical construction. It is undoubtedly a rule in criminal pleading, that every material fact must be laid with a venue, and be charged as done at some time "and place. This is usually done, after the time and place have been definitely stated, by the words “ then and there.” In this indictment, the assault is averred, technically, at a time and place, thereby “giving,” &c. the mortal blow. The present participle is often thus used as an express averment. We think that without violence to the grammatical construction, the whole may be read as one sentence, averring facts done simultaneously, so that the terms “ then and there ” apply to all the facts thus averred. The words are, “ then and there feloniously and wilfully did strike, penetrate, and wound, giving to the said Lawrence, by the casting and throwing, &c., one mortal wound,” &c.

As to the other point, the word “ with,” as applied to the stone cast and thrown, the word as it stands is superfluous, and renders the sentence ungrammatical, but not unintelligible^ But the next is an express averment, which makes it good. It states “ that the said Turns him the said Lawrence, with the stone aforesaid, so as aforesaid cast, &c., did strike and wound, giving,” &c.

Another omission relied on as error is, that it does not appear by the record that the prisoner was tried, and the verdict rendered, on the oath of twelve men ; and that the record does not contain the names of the jurors by whom he was tried, nor show that they were good and lawful men.

This is a matter of usage and practice, and each State, in ♦his respect, may have its own regulations; and the practice o< one will have little weight, as authority, in any other. In this Commonwealth, there appears to have been considerable diversity of practice in different counties, as to inserting the names of the jurors in the record, and a similar diversity in the same county, at different periods. But there is no positive rule of law, requiring the names of the jurors to be inserted in full, in the record of each particular case. It is a convenient practice, and one proper to be recommended and observed; and in most counties it is adopted; but in point of law, the court are of opinion that the want of it is not error, for which the judgment may be reversed. In criminal practice, the jury is empannelled m each particular case. Rev. Sts. c. 95, <§> 23. Every person tried therefore knows the name of every person in the panel as he is called, and, if he has cause of challenge, he may make it. If he has cause of challenge to a juror not then known, but discovered afterwards, and would rely upon it to set aside the verdict, the fact, like any other matter of fact not apparent on the record — for instance, the fact which constitutes the ground of exception to the juror.— may be brought to the knowledge of the court, by affidavit, or other evidence aliunde.

The jurors having been duly returned, and sworn without objection, the legal presumption is, that they were twelve good and lawful men.

The last error assigned and relied upon is, that the prisoner was convicted by two names, to wit, John Turns, alias Turns Dunning.

It is certainly a common practice for the grand jury to insert two or more names, under an alias, designating the person by the names best known to them. If, on his arraignment, he does not plead in abatement, he admits himself rightly designated by the names stated. The issue for the jury of trials is, not what is the individual’s name, but whether the person, who has pleaded in chief, on his arraignment, is guilty of the offence charged upon him. The conviction, therefore, must follow the indictment. The exception can be taken only in abatement. 2 Hawk. c. 23, § 125; c. 25, § 69. Scott v. Soans, 3 East, 111. In the present case, the prisoner appeared and pleaded in chief taking no exception to the name. Had he chosen to plead in abatement, the grand jury might then have amended their bill of indictment, and found and returned it anew. Besides; it might be a benefit to a party, who had been known by two names, to have both inserted, in order the better to protect him from another prosecution, for the same offence, if again indicted in either name.

Judgment affirmed  