
    Elias Cain v. State of Mississippi.
    1. Cbiminai, Law. Disqualifications of grand jurors. Code 1892, § 2375.
    Challenges to grand jurors for disqualifications must he submitted before the grand jury is impaneled, regardless of whether the disqualification arises from bias or from personal incompetency, under Code 1892, § 2375, providing that grand jurors shall be examined by the court touching their qualifications before being sworn, and thereafter no objection shall be raised to the grand jury, but its impaneling shall be conclusive evidence of its qualifications.
    
    2. Sam®. Defendant unadvised.
    
    The statute applies to the case of a defendant who was not advised that his ease was to come before the grand jury for investigation and precludes him from raising any question as to the competency of any one or more grand jurors by motion to quash the indictment.
    Ebom tbe circuit court of, second district, Carroll county.
    HoN. William: E. SteveNS,. Judge.
    Cain, tbe appellant, was indicted for manslaughter, in that be killed one Virgil Jones. Defendant moved tbe court to quasb tbe indictment on the ground that one of tbe grand jurors wbo found tbe indictment was not a citizen or resident of tbe county; that be was prejudiced against defendant and bad prejudged bis guilt in tbis case before be was impaneled; that tbe said juror was instrumental in causing tbe indictment to be found, urged its finding on tbe other jurors, etc.; that defendant was not under bond to appear to await the action of the grand jury, and therefore had no opportunity to challenge any of the grand'jurors before it was impaneled — in fact, defendant was not advised that the grand jury would consider any charge against him, etc.
    The motion to quash the indictment was overruled. Defendant was tried and convicted, and appealed to the supreme court.
    
      
      McOlwrg, Gardner & Whittington, for appellant.
    Where one is indicted bj a grand jury in bis absence, and who is not under bond, in jail, or otherwise bound to appear at that term of court, he is not cut off from inquiry as to the competency of the grand jurors that preferred a charge of felony against him. There are laws, common rights, that statutes cannot reach. One of such laws, especially- in this state, is that a grand jury means not less than twelve men taken from the body of the county of the alleged crime. No statute can make an indictment good that is found by less than twelve, nor can a statute make an indictment good in this state that is presented by women, children, Indians, or non-residents of the state or non-residents of the county.
    There has never been a law of any kind in this state, or in any other state of the union, so far as we have been able to find, allowing grand jurors to be taken from any county save that of their residence. The long-fixed policy of this state and of this country, based upon the ancient common-law rule of taking jurors from the vicinage or the hundred,, is emphasized by the constitutional and statutory requirements in this state that they must be qualified electors. The old idea of fixed and permanent residence is strengthened by the qualifications prescribed. Wherever “grand jury” or “petit jury” is mentioned in the constitution, the common-law jury is meant. No other idea was contemplated by the convention. It has been seriously questioned whether, under a statute like ours requiring the appointment of jurors from the supervisors’ districts of the county, a lawful jury could be selected without strict compliance with the statute. Constitution 1890, secs. 13, 31, 26, 2Y, 264; Purvis Case, YTMass., Y06; 10 Ency. PI. & Pr., 254, 429, 430, and notes; English v. State, 12 South. Pep., 689; Donald v. State, 12 South. Pep., 695; Reynolds v. State¿ 14 South. Pep., Y23; Shars. Blk. Com., vol. 4, p. 302; Bussell v. State, 28 L. P. A., 195, and notes; State v. Hostetter¿ 38 L. P. A., 208, and notes.
    
      We do not overlook tbe fact tbat since 1870 there bas been a statute of this state providing tbat tbe impaneling of tbe grand jury shall be conclusive evidence of tbe competency of its members, and tbat all objections not made to tbe array are cut off. Head’s Oase, 44 Miss., 731, and DurraJi/s Oase, 44 Miss., 797, are at tbe bead of tbe list on this subject. Tbe court will not fail to see tbe distinction insisted upon. “Any person interested, whose conduct may be tbe subject of inquiry and investigation, may challenge or except to tbe array for fraud,” or be is shut out from further objection. But if be is not interested in tbe sense used in the statute, or subject to investigation as contemplated by the statute — tbat is, under bond or in jail— then be is not deprived of bis right to inquire into tbe legality of tbe panel. If a man from another state should happen to be indicted here, being under no bond to appear, and at liberty, certainly be would be permitted to inquire into tbe competency of tbe grand jurors who presented an indictment against him for manslaughter. . •
    
      William Williams, attorney-general, for appellee.
    It is well settled tbat a defendant, after indictment or conviction, cannot raise objection to tbe grand jury by which be was indicted or to tbe jury by which be was convicted. Constitution 1890, sec. 264; Nail v. Slate, 70 Miss., 32; Tolbert v. State, 71 Miss., 179; George V. State, 39 Miss., 570.
    
      
      See Posey v. State, ante p. 141.
    
   Teuly, J.,

delivered tbe opinion of tbe court.

Tbe mere fact tbat one of tbe grand jurors who returned tbe indictment against appellant was disqualified cannot avail when presented by motion to quash after tbe indictment bas been found and returned into court. Code 1892, § 2375, practically .in its present form, bas been tbe law of this state for nearly fifty years, and an unbroken line of decisions construing it have uniformly held tbat an appellant desiring to táke advantage of any lack of qualification on tbe part of any grand juror or any number of grand jurors must submit a challenge at and before the impaneling of tbe grand jury; otherwise the impaneling is conclusive evidence of its competency and qualification. The section recognizes no difference in the disqualification of grand jurors. Whether this disqualification is predicated of bias or prejudice towards the party whose case is to be investigated, or whether the incompetency arises on account of residence, from lack of qualification as an elector, or other cause, the result is the same. Nor can it avail a defendant indicted that he was not advised that his case was to come before the grand jury for investigation. The section is intended to cut off all objections by every person, unless preferred at the time pointed out therein — that is, before the grand jury has been sworn and impaneled- — or unless the challenge be to the array and be predicated of fraud. The reasons which necessitated the adoption of this statute have been clearly pointed out in decisions of this court heretofore, and we deem repetition thereof unnecessary, further than to say that any other rule would render the execution of the criminal laws so difficult as to practically prevent their enforcement. It would rarely happen that after indictment a party indicted, especially if for a crime of any degree of notoriety, would not be able to raise some objection to some member of the grand jury panel, either of prejudice or bias, previous expression of opinion, incompetency, or disqualification, and the time of the court would be consumed in the determination of collateral issues thus presented. The welfare of society depends largely on the enforcement of the criminal laws of the state, and this and the orderly dispatch of business demand a continued strict adherence to the construction heretofore placed on this section. Head v. State, 44 Miss., 731; Durrah v. State, Id., 789; Fulcher v. State, 82 Miss., 630 (35 South. Rep., 170); Lienburger v. State (Tex Civ. App.), 21 S. W., 608.

Affirmed.  