
    Charles A. Smith vs. The State of Mississippi.
    Where S. was indicted, and he pleaded in abatement to the indictment, that the grand-jury were not sworn according to the provisions of the act of 1830, to which it was replied that they were sworn according to the act of 1822, setting out the oath. To this replication the defendant demurred, which was overruled, and he filed a rejoinder, upon which issue was taken and the case submitted to a jury, who returned a verdict in favor of the State, that the grand-jury were sworn according to law. Held, that this was an immaterial issue, and the question whether the proper oath was administered to the grand-jury, cannot be made the subject of a plea in abatement, but must be ascertained by an inspection of the record.
    The issue presented by the plea in abatement, should have been treated as a nullity, and the court below should have awarded a repleader to the defendant.
    IN error from the circuit court of Clarke county ; Hon. John Watts, judge.
    The facts of the case are contained in the opinion of the court.
    
      Freeman and Dixon, for the appellant.
    
      D. C. Glenn, attorney-general, for the State.
   Mr. Justice Fisher

delivered the opinion of the court.

The defendant in the court below pleaded in abatement to the indictment, that the grand-jury were not sworn according to the provisions of the act of 1830, (Hutch. Code, 887,) to which the district attorney replied that they were sworn according to the provisions of the act of 1822, setting out the form of the oath. To this replication the defendant demurred; which demurrer being overruled, the defendant filed a rejoinder to the replication, upon which issue was taken, and the cause submitted to a jury, who returned a verdict in favor of the State ; that is to say, that the grand-jury were sworn according to law.

This whole proceeding is palpably absurd, and requires no comment. It is, perhaps, the first and only instance in the history of the jurisprudence of the State, where a jury were im-panelled to ascertain the fact, whether a grand-jury were sworn according to the requirements of the law. The record which shows the impanelling of the grand-jury, is the only evidence which can be introduced to prove or disprove this fact; and whether the proper oath was in fact administered or not, or administered in the proper manner, can never be made the subject of a plea in abatement, but must be ascertained by an inspection of the record, which, in this instance, shows that the grand-jury were sworn according to law.

The plea, therefore, presented an immaterial issue, and should have been disregarded by the court.

After the jury returned their verdict, the defendant moved for leave to file the plea of not guilty, which was refused by the court, and a final judgment was accordingly entered against the defendant. If the pleg, in abatement had presented a material issue, this action of the court would have been right. But as the plea was a nullity, and as the issue formed upon it could settle nothing, the application of the defendant to plead should have been treated as though there had been no other pleading in the cause; or, in other words, the issue being an immaterial one, the court should have awarded a repleader, when the defendant could have had the full benefit of his motion.

The judgment must, therefore, for this error, be reversed.  